Dorian Davis v. Flores et al

Filing 28

ORDER GRANTING Plaintiff's 27 Request to Amend the Complaint; ORDER DENYING Defendant's 23 Motion to Dismiss as Moot signed by District Judge Jeffrey T. Miller on 8/4/2009. ( Amended Complaint due by 9/8/2009)(Figueroa, O)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. E.G. FLORES; J. CASTRO; T. BILLINGS; A. HEDGPETH; R. MARTA, Defendants. On August 15, 2008, Plaintiff, an inmate currently incarcerated at Kern Valley State Prison in Delano, California and proceeding pro se and in forma pauperis, filed a civil rights Complaint pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Defendants moved to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 23.) Along with his opposition, Plaintiff included a request for leave to file a First Amended Complaint to include additional factual allegations. (Doc. No. 27.) Under Federal Rule of Civil Procedure 15(a), "[a] party may amend its pleading once as a matter of course...before being served with a responsive pleading...." As Defendants have not yet filed a responsive pleading, Plaintiff may file a First Amended Complaint without leave of court. Thus, his request is GRANTED. If Plaintiff wishes to file a First Amended Complaint, he must do so no later -108cv1197

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION

DORIAN DAVIS aka WALI AL-TAQI, CDCR #K-78041, Plaintiff,

Civil No.

08-cv-1197 JTM (JMA)

ORDER: 1) GRANTING PLAINTIFF'S REQUEST TO AMEND COMPLAINT; and 2) DENYING DEFENDANTS' MOTION TO DISMISS AS MOOT Doc. Nos. 23 and 27

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

than September 8, 2009. Because a First Amended Complaint would supercede the target of Defendants' pending motion, Defendants' motion to dismiss is DENIED without prejudice as moot. If Plaintiff does not file a First Amended Complaint by the date specified above, Defendants are free to re-file their motion. DATED: August 4, 2009 Hon. Jeffrey T. Miller United States District Judge

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08cv1197