Carbajal v. St. Anthony Central Hospital et al

Filing 59

ORDER granting 57 Plaintiff's Motion to File Amended Complaint; the Clerk shall accept Plaintiff's Amended Prisoner Complaint [57-1] for filing as of the date of this Order; Defendants who have already been served and entered their appear ances in this case shall answer or otherwise respond to Plaintiff's Amended Prisoner Complaint [57-1] on or before 12/19/2012; the Clerk shall attempt to obtain a waiver of service from Defendant Apex; denying as moot 37 Motion to Dismiss; denying as moot 53 Motion to Dismiss. By Magistrate Judge Kristen L. Mix on 11/28/12. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02257-REB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
ST. ANTHONY CENTRAL HOSPITAL, a corporation,
CENTURA HEALTH, a corporation,
DR. CHUANG, Supervising Physician, in his official and individual capacities,
STEPHAN M. SWAN, Physician Assistant, in his official and individual capacities,
GREGORY J. ENGLUND, Registered Nurse, in his official and individual capacities,
MARCI L. HANSUE, Registered Nurse, in her official and individual capacities,
MICHAEL O’NIELL, Police Officer for the Denver Police Department, in his official and
individual capacities,
JAY LOPEZ, Police Officer for the Denver Police Department, in his official and individual
capacities,
LARRY BLACK, Police Officer for the Denver Police Department, in his official and
individual capacities,
LIEUTENANT THOMAS, Lieutenant for the Denver Police Department, in his official and
individual capacities,
CAPTAIN STEVEN CARTER, Captain for the Denver Police Department, in his official and
individual capacities,
GILBERTO LUCIO, Police Officer for the Denver Police Department, in his official and
individual capacities, and
CITY AND COUNTY OF DENVER, a political subdivision of the State of Colorado,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on the Motion to Dismiss [Docket No. 37; Filed
November 5, 2012], filed by Defendants St. Anthony Central Hospital, Centura Health,
Gregory J. Englund, and Marci L. Hansue; on the Denver Defendants’ Motion to Dismiss

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Plaintiff’s Sixth Claim for Relief [Docket No. 53; Filed November 26, 2012], filed by
Defendants Michael O’Neill, Jay Lopez, Larry Black, Lieutenant Ron Thomas, Captain
Steven Carter, Gilberto Lucio, and the City and County of Denver; and on the Motion to
File Amended Complaint [Docket No. 57; Filed November 27, 2012], filed by Plaintiff.
Pursuant to Fed. R. Civ. P. 15(a)(1)(B), Plaintiff may amend his pleading once as
a matter of course “within . . . 21 days after service of a motion under Rule 12(b) . . . .”
Plaintiff has submitted his Amended Prisoner Complaint within this period. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s Motion to File Amended Complaint [#57]
is GRANTED.
IT IS FURTHER ORDERED that the Clerk of the Court shall accept Plaintiff’s
Amended Prisoner Complaint [#57-1] for filing as of the date of this Order.
Service has previously been effected on all Defendants except for one newly-added
Defendant in the Amended Prisoner Complaint. Accordingly,
IT IS FURTHER ORDERED that those Defendants who have already been served
and entered their appearances in this case shall answer or otherwise respond to Plaintiff’s
Amended Prisoner Complaint [#57-1] on or before December 19, 2012.
Newly-added Defendant Apex has not been served or entered an appearance in this
case. Accordingly,
IT IS HEREBY ORDERED that, if appropriate, the Clerk shall attempt to obtain a
waiver of service from Defendant Apex. If unable to do so, the United States Marshal shall
serve a copy of the Amended Prisoner Complaint, summons, and all other orders upon
Defendant Apex. If appropriate, the Marshal shall first attempt to obtain a waiver of service

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of these documents pursuant to Fed. R. Civ. P. 4(d). All costs of service shall be advanced
by the United States.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss [#37, #53] are
DENIED as moot. See, e.g., Strich v. United States, No. 09-cv-01913-REB-KLM, 2010 WL
14826, at *1 (D. Colo. Jan. 11, 2010) (citations omitted) (“The filing of an amended
complaint moots a motion to dismiss directed at the complaint that is supplanted and
superseded.”); AJB Props., Ltd. v. Zarda Bar-B-Q of Lenexa, LLC, No. 09-2021-JWL, 2009
WL 1140185, at *1 (D. Kan. Apr. 28, 2009) (finding that amended complaint superseded
original complaint and “accordingly, defendant’s motion to dismiss the original complaint
is denied as moot”); Gotfredson v. Larsen LP, 432 F. Supp. 2d 1163, 1172 (D. Colo. 2006)
(noting that defendants’ motions to dismiss are “technically moot because they are directed
at a pleading that is no longer operative”).

Dated: November 28, 2012

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