Davis v. Kellar et al

Filing 82

MINUTE ORDER granting 79 Motion to Amend Complaint Pursuant to Bivens. The tendered Amended Complaint (Docket No. 79-1) is accepted for filing as of the date of this Minute Order, and the caption of this case is amended. By Magistrate Judge Michael J. Watanabe on 12/5/13.(mnfsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-01060-MSK-MJW
JAMIE DAVIS,
Plaintiff(s),
v.
UNITED STATES OF AMERICA,
Defendant(s).
MINUTE ORDER
Entered by Magistrate Judge Michael J. Watanabe
It is hereby ORDERED that the plaintiff’s Motion to Amend Complaint Pursuant to
Bivens (Docket No. 79) is granted. The tendered Amended Complaint (Docket No. 791) is accepted for filing as of the date of this Minute Order, and the caption of this case
is amended as reflected above.
The court notes that the title of the plaintiff’s motion confusing states that he is
amending his Complaint pursuant to Bivens, and the body of his motion furthers the
confusion by seeming to indicate he was merely reiterating his dismissed Bivens claims
against the individual defendants. A review of the tendered amended pleading (Docket
No. 79-1), however, shows that plaintiff is, in fact, now naming solely the United States
as a defendant and purports to raise a claim under the Federal Tort Claim Act rather
than Bivens. The court notes that the defendants apparently raise a statute of
limitations argument in their Response (Docket No. 81). The court finds, however, that
such an argument would best be raised in an appropriate dispositive motion by the
United States. For these reasons, the motion to amend shall be granted, and the
tendered amended pleading is accepted for filing.
In the interest of moving this case forward, it is further ORDERED that on or
before December 16, 2013, defense counsel shall advise the court whether he will
accept service of the Amended Complaint on behalf of the United States or whether the
court should arrange for service to be effected by the U.S. Marshal Service.
Date: December 5, 2013