Marshall v. Tatum et al

Filing 30

ORDER granting 23 Motion for Extension of Time to File Motion; granting 26 Motion to Amend Complaint; dismissing without prejudice 19 Defendants' Motion to Dismiss; and dismissing as moot 21 Motion for Extension of Time to File Respo nse/Reply. The Court hereby ORDERS that the Amended Complaint shall be the operative Complaint in this action. Defendants shall file their responsive pleadings to Plaintiff's Amended Complaint within twenty-one days from the date of this Order. Signed by Magistrate Judge R. Stan Baker on 7/11/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JAMMIE L. MARSHALL,
Plaintiff,

CIVIL ACTION NO. 6:15-cv-85

v.
WARDEN CLAY TATUM; and CO
ANTHONY MOBLEY,
Defendants.
ORDER
Presently before the Court are Defendants’ Motion to Dismiss, (doc. 19), Plaintiff’s
Motions for Extension of Time, (docs. 21, 23), and Plaintiff’s Motion to Amend his Complaint,
(doc. 26). For the reasons and in the manner set forth below, the Court GRANTS Plaintiff’s
Motion for Extension of Time to File Amended Pleadings, (doc. 23), GRANTS Plaintiff’s
Motion to Amend, DISMISSES as moot Plaintiff’s Motion for Extension of Time to File
Response, (doc. 21), and DISMISSES Defendants’ Motion to Dismiss without prejudice.
BACKGROUND
Plaintiff, who is currently housed at Rogers State Prison in Reidsville, Georgia, submitted
a Complaint in the above captioned action pursuant to 42 U.S.C. § 1983 alleging that Defendants
violated his Constitutional rights. (Doc. 1.) Plaintiff alleges that on June 25, 2016, Defendant
Mobley, a correctional officer at Rogers State Prison, used excessive force against Plaintiff in
violation of the Eight Amendment. (Doc. 1, p. 5.) In the Court’s March 14, 2016 Order
adopting in part the Magistrate Judge’s Report and Recommendation, (doc. 10), the Court stated
that Plaintiff also plausibly alleged enough facts to state a claim against Defendant Tatum.
(Doc. 15.) Plaintiff’s Complaint was subsequently served on Defendant Tatum. On April 5,

2016, Defendant Tatum filed a Motion to Dismiss, (doc. 19), and Plaintiff filed a Motion for
Extension of Time to reply to the Motion to Dismiss as well as to amend his pleading, (docs. 21,
23). Plaintiff then filed a Motion to Amend his Complaint on June 10, 2016. (Doc. 26.)
DISCUSSION
I.

Plaintiff’s Motion to Amend his Complaint
Under Federal Rule of Civil Procedure 15(a), a party may amend his complaint once as a

matter of right within twenty-one (21) days after a motion is served under Rule 12(b), (e), or (f).
Even when a party may not amend as a matter of right, he may amend with the opposing party’s
written consent, or the court’s leave. Fed. R. Civ. P. 15(b). “The court should freely give leave
when justice so requires.” Id. While leave to amend is generally freely given, it is by no means
guaranteed. “In making this determination, a court should consider whether there has been
undue delay in filing, bad faith or dilatory motives, prejudice to the opposing parties, and the
futility of the amendment.” Cooks v. United States, No. CV 114-195, 2015 WL 7069665, at *1
(S.D. Ga. Nov. 13, 2015) (quoting Saewitz v. Lexington Ins. Co., 133 F. App’x 695, 699 (11th
Cir. 2005)).
Here, Plaintiff filed his leave to amend outside the twenty-one day window for filing as a
matter of right, but Plaintiff did file a Motion for Extension, (doc. 21), citing limited access to
legal materials and lack of resources as the delay. Although this Court did not previously rule on
the Motion for Extension, it will deem Plaintiff’s Amended Complaint as timely filed. Plaintiff
states that his Amended Complaint adds more factual allegations to supplement his claim against
Defendant Tatum, and removes Rogers State Prison as a defendant.

(Doc. 26, pp. 1–2.)

Accordingly, the Court GRANTS Plaintiff’s Motion for Extension to File Amended Pleadings,
(doc. 23), and GRANTS Plaintiff’s Motion to Amend, (doc. 26).

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II.

Motion to Dismiss
Defendants filed a Motion to Dismiss on April 22, 2016, questioning the sufficiency of

Plaintiff’s Complaint. (Doc. 19.) However, Plaintiff’s request to amend could directly impact
the questions underlying the Motion to Dismiss, particularly because “an amended complaint
supersedes the initial complaint and becomes the operative pleading in the case.” Lowery v. Ala.
Power Co., 483 F.3d 1184, 1219 (11th Cir. 2007).

Consequently, Plaintiff’s Amended

Complaint, (doc. 27), moots Defendants’ Motion to Dismiss the original Complaint. Perkins v.
Kushla Water Dist., No. CIV.A. 13-00286-KD-B, 2013 WL 4511329, at *1 (S.D. Ala. Aug. 23,
2013) (“Because Plaintiff’s amended complaint is now the operative pleading in this action;
Defendants’ motion [to dismiss] is moot.”) (citing Pintando v. Miami-Dade Housing Agency,
501 F.3d 1241, 1243 (11th Cir. 2007); DeSisto College v. Line, 888 F.2d 755, 757 (11th Cir.
1983); Meterlogic, Inc. v. Copier Solutions, Inc., 185 F. Supp. 2d 1292, 1297 (S.D. Fla. 2002)).
Accordingly, the Amended Complaint also moots Plaintiff’s Motion for Extension of Time to
File a Response to Defendant’s Motion to Dismiss. (Doc. 21.)
Thus, the Court DISMISSES Defendants’ Motion to Dismiss without prejudice and
DISMISSES as moot Plaintiff’s Motion for Extension of Time to File a Response. Defendant
Tatum may reassert his Motion, if proper, after accounting for Plaintiff’s Amended Complaint. 1
CONCLUSION
For the reasons and in the manner set forth above, the Court GRANTS Plaintiff’s Motion
to Amend his Complaint, (doc. 26), GRANTS Plaintiff’s Motion for Extension of Time to File
Amended Pleadings, (doc. 23), DISMISSES as moot Plaintiff’s Motion for Extension of Time
to File a Response, (doc. 21), and DISMISSES without prejudice Defendants’ Motion to
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Should Defendant reassert his argument regarding Plaintiff’s alleged failure to exhaust his
administrative remedies, , Defendant is hereby directed to consider and address the impact of the Supreme
Court’s recent decision in Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850 (June 6, 2016).

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Dismiss, (doc. 19). Plaintiff’s Proposed Amended Complaint, (doc. 27), has already been filed
on the docket of this case.. The Court hereby ORDERS that the Amended Complaint shall be
the operative Complaint in this action. Defendants shall file their responsive pleadings to
Plaintiff’s Amended Complaint within twenty-one days from the date of this Order. 2
SO ORDERED, this 11th day of July, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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Federal Rule of Civil Procedure 15(a)(3) provides that “[u]nless the court orders otherwise, any
required response to an amended pleading must be made within the time remaining to respond to the
original pleading or within 14 days after service of the pleading, whichever is later.” Though Defendants
were served with Plaintiff’s Amended Complaint when it was filed on the Court’s docket on June 16,
2016, the Court had not yet granted Plaintiff leave to amend his Complaint.

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