Milligan v. Archuleta et al

Filing 43

MINUTE ORDER by Magistrate Judge Kristen L. Mix on 5/8/12. Denying Without Prejudice 35 Motion to Dismiss for Failure to State a Claim; Granting 41 Motion to Amend/Correct/Modify. The Clerk of Court shall ACCEPT Plaintiffs Second Amended Complaint [#41-1] for filing as of the date of this Minute Order.Defendants may file an answer or other response to Plaintiffs SecondAmended Complaint on or before May 22, 2012. (pabcd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00250-PAB-KLM
MICHAEL MILLIGAN,
Plaintiff,
v.
LOU ARCHULETA,
CHARLES SANCHEZ,
LANCE MIKLICH, and
KEVIN FURTON,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion to Dismiss [Docket No. 35;
Filed March 19, 2012] and on Plaintiff’s Response to Defendants’ Motion to Dismiss
[Docket No. 41; Filed May 2, 2012] (the “Motion to Amend”). In response to Defendants’
Motion to Dismiss [#35], Plaintiff seeks to file a Second Amended Complaint [#41-1],
purportedly correcting the alleged defects raised in the Motion to Dismiss. Pursuant to Fed.
R. Civ. P. 15(a)(B), a party may amend his pleading once as a matter of course 21 days
after service of a motion under Fed. R. Civ. P. 12(b). Here, Plaintiff, who proceeds in this
matter as an incarcerated pro se individual, was granted an extension of time through May
1, 2012, to file a response to the Motion to Dismiss. See Minute Order [#40]. The Motion
to Amend was received by the Office of the Clerk on May 2, 2012, which means that it was
clearly timely mailed by Plaintiff. See Price v. Philpot, 420 F.3d 1158, 1166 (10th Cir. 2005)
(stating that a prisoner’s motion is deemed filed when he gives the document to prison
officials for mailing). Thus, Plaintiff may file an amendment to his Amended Complaint as
a matter of course pursuant to Fed. R. Civ. P. 15(a)(B). Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#41] is GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall ACCEPT Plaintiff’s Second
Amended Complaint [#41-1] for filing as of the date of this Minute Order.
IT IS FURTHER ORDERED that, in consideration of the filing of the Second
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Amended Complaint, Defendants’ Motion to Dismiss [#35] is DENIED WITHOUT
PREJUDICE. Defendants may file an answer or other response to Plaintiff’s Second
Amended Complaint on or before May 22, 2012.
Dated: May 8, 2012

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