Morris v. Samuels et al

Filing 35

MINUTE ORDER; The Motion to Amend 33 is GRANTED. The Clerk of Court shall accept Plaintiffs Third Amended Complaint [#33-1] for filing as of the dateof this Minute Order. The Motions to Dismiss [#28, #31] are DENIED as moot. The Motion for Order [#29] is DENIED in part and DENIED as moot in part. The Motion to Reconsider [#22] is DENIED as moot, by Magistrate Judge Kristen L. Mix on 10/9/14.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-01296-KLM
KENNETH A. MORRIS,
Plaintiff,
v.
D. BERKEBILE, Florence ADX Warden,
CORDOVA, Assistant Medical Adminstrator,
HALL, Associate Warden, and
ALLRED, Clinical Director Doctor,
Defendants.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion to Reconsider [#22]; on
Defendants’ Motion to Dismiss [#28]; on Plaintiff’s Motion for an Order from This Court
Instructing Defendants to Answer the Complaint and to Produce Plaintiff’s Complete
Medical File and a Copy of B.O.P. Manual for the “Prevention and Treatment of
Hepatitis C and Cirrhosis” [#29] (the “Motion for Order”); on Defendant Cordova’s Motion
to Dismiss [#31]; and on Plaintiff’s Response to Defendant’s Motion to Dismiss and
Plaintiff’s Motion for Leave to File Second Amended Complaint [#33] (the “Motion to
Amend”).
Regarding Plaintiff’s Motion to Amend [#33], the Court first notes that Plaintiff
violates Local Rule 7.1(d), which states that “[a] motion shall not be included in a response
or reply to the original motion. A motion shall be made in a separate document.” However,
the Court does not strike Plaintiff’s Motion to Amend in this instance because the substance
of the filing is not actually responsive to Defendants’ Motions to Dismiss [#28, #31] and
instead seeks leave to file an amended complaint. However, Plaintiff is warned that future
filings that do not comply with the Local Rules may be stricken without further
warning.
Under Fed. R. Civ. P. 15(a)(1)(B), a party may amend his complaint once as a
matter of course within “21 days after service of a motion under Rule 12(b),” and Plaintiff
has here requested leave to file an amended complaint within a timely manner.
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Accordingly,
IT IS HEREBY ORDERED that the Motion to Amend [#33] is GRANTED. The Clerk
of Court shall accept Plaintiff’s Third Amended Complaint [#33-1] for filing as of the date
of this Minute Order.1
IT IS FURTHER ORDERED that the Motions to Dismiss [#28, #31] 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. April 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”).
IT IS FURTHER ORDERED that the Motion for Order [#29] is DENIED in part and
DENIED as moot in part. The Motion is denied to the extent Plaintiff seeks an order
requiring Defendants to provide him with certain discovery. Plaintiff’s request is premature
because a Scheduling Conference has not yet been held in this matter and the discovery
period has not yet begun. The Motion for Order is denied as moot to the extent Plaintiff
seeks an order requiring Defendants to file an answer to the now superseded complaint in
this matter.
Finally, regarding the Motion to Reconsider [#22], Plaintiff asks the Court to
reconsider dismissal of certain claims and Defendants by allowing him to file an amended
complaint addressing these issues. [#22] at 2 (stating that Plaintiff’s “request is that this
Court allow for a small period of time that Complaints #1 and #2 be Amended”). To the
extent that Plaintiff has now been permitted to file an amended complaint, his request
appears to be moot. Accordingly,
IT IS FURTHER ORDERED that the Motion to Reconsider [#22] is DENIED as
moot.
Dated: October 9, 2014

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Plaintiff has previously amended his complaint as part of the Court’s pro se review
process, but he has not previously amended his complaint in respond to a motion to dismiss.

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