Salat v. Pirotto et al

Filing 23

ORDER signed by Magistrate Judge Allison Claire on 11/14/14 VACATING 12 Motion to Dismiss and the 11/19/2014 Hearing and DENYING 21 Request to Appear Telephonically. Defendants are DIRECTED to file a responsive pleading or 12(b) motion within 21 days of this order. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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IMHOTEP SALAT,

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No. 2:14-cv-01468-MCE-AC

Plaintiff,
v.

ORDER

MICHAEL PIROTTO, et al.,
Defendants.

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This action was referred to the undersigned pursuant to Local Rule 302(c)(21). Before the

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court is defendants’ motion to dismiss plaintiff’s initial complaint (ECF No. 12) as well as

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plaintiff’s motion to appear telephonically (ECF No. 21). For the reasons discussed below, the

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court vacates defendants’ motion to dismiss and denies plaintiff’s request to appear

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telephonically, as both are now moot.

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PROCEDURAL BACKGROUND
On June 19, 2014, plaintiff filed an initial complaint against defendants along with an

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application to proceed in forma pauperis. ECF Nos. 1 & 2. Plaintiff’s initial complaint includes

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claims for violation of his constitutional rights pursuant to 42 U.S.C. § 1983. ECF No. 1. On

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July 2, 2014, the court granted plaintiff’s application to proceed in forma pauperis. ECF No. 3.

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On October 15, 2014, defendants filed a motion to dismiss plaintiff’s initial complaint, arguing

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that (1) plaintiff failed to allege a custom, policy, or practice was the driving force behind the
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violation of his constitutional rights; (2) the Younger Abstention Doctrine mandates that the court

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abstain from adjudicating plaintiff’s claims in light of the fact that plaintiff is involved in related

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ongoing civil and criminal litigation in state court; and (3) plaintiff’s claims based on violation of

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his Fifth Amendment rights must be dismissed because the Fifth Amendment does not apply to

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local government entities. ECF No. 12 at 1–2. On October 30, 2014, plaintiff filed a first

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amended complaint. ECF No. 15.

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LEGAL STANDARD
Federal Rule of Civil Procedure 15 governs amended pleadings. In pertinent part, Rule
15(a) reads: “A party may amend its pleading once as a matter of course within . . . , if the

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pleading is one to which a response pleading is required, 21 days after service of the responsive

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pleading or 21 days after service of a motion under Rule 12(b) . . . .“ Fed. R. Civ. P. 15(a)(1)(B).

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A properly filed “amended complaint supersedes the original [complaint], the latter being treated

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thereafter as non-existent.” Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997); Loux

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v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967).

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ANALYSIS
The court finds that defendants’ motion to dismiss is moot, as plaintiff’s initial complaint

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has been superseded by his first amended complaint. Defendants filed their motion to dismiss

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plaintiff’s initial complaint on October 15, 2014. ECF No. 12. Plaintiff filed his first amended

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complaint on October 30, 2014, ECF No. 15, well within the twenty-one (21) day period allowed

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after service of a motion under Rule 12(b), Fed. R. Civ. P. 15(a). Accordingly, plaintiff’s initial

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complaint has been superseded by his first amended complaint and the court will vacate

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defendants’ motion to dismiss, without prejudice to a motion addressed to the amended

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complaint.

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In light of this order, the court will vacate the hearing scheduled for November 19, 2014,

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and deny plaintiff’s request to appear telephonically as moot.

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Accordingly, IT IS HEREBY ORDERED that

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1. Defendants’ motion to dismiss, ECF No. 12, is vacated;

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2. The court’s November 19, 2014, hearing is vacated;
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3. Plaintiff’s request to appear telephonically at the court’s November 19, 2014, hearing,
ECF No. 21, is denied; and
4. Defendants are directed to file a responsive pleading or 12(b) motion within twenty-

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one (21) days of this order.

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DATED: November 14, 2014

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