Arevalo v. Castro et al

Filing 71

ORDER denying as moot ECF No. 60 Motion to Dismiss. Signed by Judge Robert C. Jones on 12/06/2016. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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ANDREW AREVALO,

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Plaintiff,

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3:15-cv-00407-RCJ-WGC

vs.
ORDER

JEFF CASTRO et al.,

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Defendants.

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This is a prisoner civil rights case. Pending before the Court is a Motion to Dismiss. (ECF

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No. 60.) For the reasons given herein, the motion is denied as moot.

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I.

FACTS AND PROCEDURAL HISTORY
Plaintiff Andrew Arevalo is incarcerated at Ely State Prison. On June 23, 2015, Plaintiff

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filed a § 1983 claim in state court alleging that while incarcerated at the High Desert State Prison

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officers allowed another inmate to initiate an altercation with him. Then, without justification,

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the officers allegedly shot Plaintiff repeatedly, slammed his face and head into the ground, and

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deprived him of prompt and proper medical treatment. Plaintiff asserted the following claims: (1)

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excessive use of force, deliberate indifference, and failure to prevent or stop an inmate attack; (2)

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assault; (3) battery; (4) intentional infliction of emotional distress; (5) negligence; (6) negligence

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per se; and (7) negligent training, supervision, and retention. Defendants removed.

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On October 13, 2016, Defendants James Greg Cox, Dwight Neven, Marc Syndiongco,

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Ronald Oliver, and Dustin Mumpower filed the instant motion to dismiss. They argue, inter alia,

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that they should be dismissed from this action because Plaintiff’s Complaint fails to allege their

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personal participation in the alleged misconduct as required by § 1983. (Mot. Dismiss 5–6, ECF

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No. 60.) On October 27, 2016, the parties stipulated to extend the time for Plaintiff to respond to

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the motion or, in the alternative, file an amended pleading. (Stipulation, ECF No. 63.) Rather

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than oppose the motion, Plaintiff amended his Complaint. (Am. Compl., ECF No. 64.)

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II.

LEGAL STANDARDS
Federal Rule of Civil Procedure 15(a) provides that a plaintiff may amend his complaint

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“as a matter of course” within 21 days after (1) service of the complaint, (2) service of a

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responsive pleading, or (3) service of a motion under Rule 12(b), (e), or (f). The Ninth Circuit

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Court of Appeals construes “the phrase ‘matter of course’ as consonant with ‘as of right,’

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implying, if not expressly declaring, that Rule 15 confers a ‘right’ to amend upon the parties.”

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Ramirez v. Cty. of San Bernardino, 806 F.3d 1002, 1007 (9th Cir. 2015). When an amended

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complaint is filed, it “supersedes the original, the latter being treated thereafter as non-existent.”

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Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997) (internal citation omitted),

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overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 927–28 (9th Cir. 2012).

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III.

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ANALYSIS
The Court finds that the Amended Complaint is a valid and permitted amendment under

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Rule 15. The Motion to Dismiss filed by Cox, Neven, Sydiongco, Oliver, and Mumpower

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triggered Plaintiff’s right to file an amended pleading within 21 days thereafter, on or before

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November 3, 2016. This deadline was extended by a court-approved stipulation of the parties.

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Plaintiff then filed his Amended Complaint in compliance with the extended deadline established

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by the stipulation.

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The effect of the Amended Complaint is to supersede and replace the original Complaint,

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such that “the original pleading no longer performs any function,” and effectively “ceases to

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exist.” Ramirez, 806 F.3d at 1008. Accordingly, because the Motion to Dismiss targets Plaintiff’s

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original Complaint, which is no longer in effect, the Motion is moot. See id.
CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 60) is DENIED as

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moot.
IT IS SO ORDERED.

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_____________________________________
ROBERT C. JONES
United States District Judge

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December 6, 2016.

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