Austin, Jr. v. Pfeiffer

Filing 13

ORDER Denying 7 Motion to Dismiss as Moot. The petition which Respondent seeks to dismiss is no longer the operative pleading in this action, as an amended petition supersedes the original petition. As such, the Court denies as moot Respondent 9;s motion to dismiss Petitioner's petition. The assigned magistrate judge remains designated to conduct all future proceedings in this action as appropriate, consistent with applicable statutes and this District's Local Rules. Signed by Judge Michael M. Anello on 3/7/2018. (All non-registered users served via U.S. Mail Service)(rmc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case No.: 17cv1950-MMA (WVG)

VICTOR EUGENE AUSTIN, JR.,
Petitioner,

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v.

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ORDER DENYING MOTION TO
DISMISS AS MOOT

PFEIFFER, et al.,
[Doc. No. 7]

Respondent.

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On September 25, 2017, Petitioner, a state prisoner proceeding pro se, filed a

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Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. See Doc. No. 1.

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Respondent moves to dismiss the petition as barred by the statute of limitations pursuant

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to 28 U.S.C. § 2244(d). See Doc. No. 7. On February 28, 2018, the assigned magistrate

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judge accepted Petitioner’s amended petition for filing.1 See Doc. Nos. 11, 12.

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Accordingly, the petition which Respondent seeks to dismiss is no longer the operative

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Pursuant to Federal Rule of Civil Procedure 15(a)(1), “[a] party may amend its pleading once as a
matter of course within . . . 21 days after service of a motion [to dismiss] . . . .” Fed. R. Civ. P. 15(a)(1).
It is unclear whether Petitioner amended his pleading within 21 days after service of Defendants’ motion
to dismiss, as it appears Petitioner did not sign or date the amended petition. See Doc. No. 12 at 15 of
68. In any event, if Petitioner wishes to further amend his pleadings in this action he must seek leave of
Court prior to doing so. See Fed. R. Civ. P. 15(a)(2); see also Mayle v. Felix, 545 U.S. 644, 655 (2005)
(Federal Rule of Civil Procedure 15 applicable to habeas proceedings pursuant to 28 U.S.C. § 2242,
Federal Rule of Civil Procedure 81(a)(2), and Habeas Corpus Rule 11 [later renumbered as Rule 12).
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17cv1950-MMA (WVG)

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pleading in this action, as an amended petition supersedes the original petition. See

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Ramirez v. Cnty. of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015). As such, the

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Court DENIES AS MOOT Respondent’s motion to dismiss Petitioner’s petition.

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The assigned magistrate judge remains designated to conduct all future

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proceedings in this action as appropriate, consistent with applicable statutes and this

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District’s Local Rules.2 See S.D. Cal. CivLR 72.1.d; HC.2.e.1.

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IT IS SO ORDERED.
DATE: March 7, 2018

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_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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As such, the assigned magistrate judge will set the appropriate deadlines for filing a response to the
amended petition via separate order.
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17cv1950-MMA (WVG)