Wensel v. Subia, et al

Filing 44

ORDER signed by Magistrate Judge Edmund F. Brennan on 01/29/09 DENYING 26 Motion to Dismiss, without prejudice to renewal directed to the operative complaint; IT IS FURTHER ORDERED that Defendants have 30 days from the date of this order to file and serve a response to the second amended complaint. (Streeter, J)

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 vs. R. J. SUBIA, et al., Defendants. / Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Currently pending is defendants' June 17, 2008, motion to dismiss. In response, plaintiff has filed an amended complaint. For the reasons explained, the motion to dismiss is mooted and defendants must respond to the amended complaint. Until plaintiff filed a second amended complaint, this action proceeded on the September 14, 2007, first amended complaint in which plaintiff stated claims that all three defendants were deliberately indifferent to his safety. In response, defendants moved to dismiss on the ground that plaintiff failed to state a claim for relief. See Fed. R. Civ. P. 12(b). Instead of filing an opposition to defendants' motion, plaintiff requested leave to file an amended complaint. Even though leave was not required because no answer was on file, see Fed. R. Civ. P. 15(a)(1), the court granted the request. Thus, on January 15, 2009, plaintiff filed a second amended
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA SHAW WENSEL, Plaintiff, No. CIV S-07-0900 JAM EFB P

ORDER

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complaint. Plaintiff's second amended complaint supersedes the prior complaints, which now are treated as nonexistent. Bullen v. De Bretteville, 239 F.2d 824, 833 (9th Cir. 1956). Therefore, defendants' motion to dismiss the first amended complaint is moot. The court has reviewed the second amended complaint and finds that plaintiff states a claim that all three defendants were deliberately indifferent to plaintiff's safety. See 28 U.S.C. § 1915A. Defendants must respond to the complaint. Accordingly, it is ORDERED that: 1. Defendants' June 17, 2008, motion to dismiss is denied without prejudice to renewal directed to the operative complaint; and, 2. Defendants have 30 days from the date of this order to file and serve a response to the second amended complaint. Dated: January 29, 2009.

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