Silverstein v. Federal Bureau of Prisons et al

Filing 159

MINUTE ORDER denying as moot 48 and 98 Defendants' Motions to Dismiss without Prejudice, by Judge Philip A. Brimmer on 5/18/09.(ebs, )

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Case No. 07-cv-02471-PAB-KMT THOMAS SILVERSTEIN, Plaintiff, v. FEDERAL BUREAU OF PRISONS, et al., Defendants. ______________________________________________________________________________ MINUTE ORDER ______________________________________________________________________________ Entered by Judge Philip A. Brimmer On March 28, 2008, defendants, in their official capacities, filed a partial motion to dismiss [Docket No. 48] plaintiff's amended complaint. On July 28, 2008, defendants Lappin, Conley, Nalley and Wiley, in their individual capacities, filed their motion to dismiss [Docket No. 98] plaintiff's amended complaint. On April 14, 2009, plaintiff filed a motion for leave to file a second amended complaint [Docket No. 140], which motion was granted on May 14, 2009 [Docket No. 157]. The second amended complaint was filed on May 14, 2009 [Docket No. 158]. Thus, as of May 14, 2009, the operative pleading was the Second Amended Complaint. Defendants' motions to dismiss are therefore directed at an inoperative, superseded pleading. See, e.g., Gilles v. United States, 906 F.2d 1386, 1389 (10th Cir. 1990) ("[A] pleading that has been amended under Rule 15(a) supersedes the pleading it modifies . . . .") (internal quotation marks omitted). As such, the motions to dismiss are moot. Therefore, it is

ORDERED that defendants' motions to dismiss without prejudice [Docket Nos. 48, 98] are DENIED as moot. DATED May 18, 2009.

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