Harrera-Roman v. Harris, et al

Filing 51

ORDER Finding as Moot 49 Report and Recommendation of US Magistrate Judge; and Finding as Moot 29 Plaintiff's Motion to Amend First Amended Complaint. It is hereby ordered that Defendants shall answer or otherwise respond to Plaintiff' s Second Amended Complaint by 3/29/2013. Defense Counsel is instructed to contact the Chambers of Judge Anello to obtain a Hearing Date prior to filing a Motion to Dismiss the Second Amended Complaint. Signed by Judge Michael M. Anello on 3/11/2013. (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID HARRERA-ROMAN,

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Plaintiff,

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vs.

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ORDER RE: REPORT &
RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
[Doc. No. 49]

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CASE NO. 11cv840-MMA (KSC)

FINDING AS MOOT PLAINTIFF’S
MOTION TO AMEND FIRST
AMENDED COMPLAINT

JOHN HARRIS, et al.,
Defendants.

[Doc. No. 29]

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On April 20, 2011, David Harrera-Roman (“Plaintiff”), an inmate currently

19 incarcerated at the United States Penitentiary in Tucson, Arizona, and proceeding
20 pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, which the Court
21 liberally construed as an action filed pursuant to Bivens v. Six Unknown Named Fed.
22 Narcotics Agents, 403 U.S. 388 (1971). On August 8, 2011, Plaintiff filed a First
23 Amended Complaint and the Court found Plaintiff’s claims sufficiently pleaded to
24 survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b).
25 On May 7, 2012, Plaintiff filed a motion to amend his complaint and a request for a
26 status update. See Doc. No. 29. On June 18, 2012, Defendants filed a response to
27 Plaintiff’s motion, which included a request to dismiss Plaintiff’s First Amended
28 Complaint pursuant to Federal Rule of Civil Procedure 4(m). See Doc. No. 32. On
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1 December 28, 2012, Plaintiff filed a Second Amended Complaint. See Doc. No. 46.
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Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.3, on February 4,

3 2013, United States Magistrate Judge Karen S. Crawford issued a Report
4 recommending that Defendants’ request for dismissal of the First Amended
5 Complaint for improper service be granted and Plaintiff’s motion to amend his First
6 Amended Complaint be denied as moot. See Doc. No. 49. Plaintiff filed objections
7 to the Report and Recommendation. See Doc. No. 50.
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DISCUSSION
A district judge “may accept, reject, or modify the recommended disposition;

10 receive further evidence; or return the matter to the magistrate judge with
11 instructions” on a dispositive matter prepared by a magistrate judge proceeding
12 without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28
13 U.S.C. § 636(b)(1). An objecting party may “serve and file specific written
14 objections to the proposed findings and recommendations,” and “a party may
15 respond to another party’s objections.” Fed. R. Civ. P. 72(b).
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In reviewing a report and recommendation, “the court shall make a de novo

17 determination of those portions of the report or specified proposed findings or
18 recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); United States
19 v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must
20 make a de novo determination of the factual findings to which there are objections).
21 Plaintiff primarily objects to the magistrate judge’s recommendation that his First
22 Amended Complaint be dismissed.
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The Report and Recommendation contains a thoughtful analysis regarding

24 Plaintiff’s failure to properly serve Defendants with his First Amended Complaint.
25 However, as mentioned above, Plaintiff has filed a Second Amended Complaint. A
26 newly amended complaint supersedes the previously filed complaint. Forsyth v.
27 Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). “This rule is premised on the
28 notion that the ‘amended complaint supersedes the original, the latter being treated
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1 thereafter as non-existent.’” Id., citing Loux v. Rhay, 375 F.2d 55, 57 (9th Cir.
2 1967). Therefore, once a plaintiff files an amended complaint, the previous pleading
3 no longer serves any function in the case. Plaintiff’s Second Amended Complaint
4 supersedes his First Amended Complaint. Because Defendants request dismissal of
5 a non-operative pleading, the request is moot. Likewise, Plaintiff’s motion to amend
6 his First Amended Complaint is moot based on the filing of his Second Amended
7 Complaint. And while the Court finds no fault with the magistrate judge’s well8 reasoned analysis regarding improper service, the Court must find as moot the
9 recommendation that Plaintiff’s First Amended Complaint be dismissed on those
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CONCLUSION
Based on the foregoing, the Court FINDS AS MOOT Defendants’ request for

13 dismissal of the First Amended Complaint and the magistrate judge’s
14 recommendation that the request be granted. The Court further FINDS AS MOOT
15 Plaintiff’s motion to amend his First Amended Complaint.
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IT IS HEREBY ORDERED THAT Defendants shall answer or otherwise

17 respond to Plaintiff’s Second Amended Complaint on or before March 29, 2013.
18 Defense counsel is instructed to contact the Chambers of Judge Anello to obtain a
19 hearing date prior to filing a motion to dismiss the Second Amended Complaint.
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IT IS SO ORDERED.

21 DATED: March 11, 2013
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Hon. Michael M. Anello
United States District Judge

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