OGG v. CLARK

Case No. 1:16-cv-816.

BILLY JOE OGG, Plaintiff, v. JAMES M. CLARK, et al., Defendants.

United States District Court, S.D. Ohio, Western Division.

Editors Note
Applicable Law: 42 U.S.C. § 1983
Cause: 42 U.S.C. § 1983 Prisoner Civil Rights
Nature of Suit: 550 Prisoner: Civil Rights
Source: PACER


Attorney(s) appearing for the Case

Billy Joe Ogg, Plaintiff, Pro Se.

James M Clark, Defendant, represented by Zachary R. Huffman , Office of the Ohio Attorney General.

Greg Holdren, Defendant, represented by Zachary R. Huffman , Office of the Ohio Attorney General.

Brian Nolan, Defendant, represented by Zachary R. Huffman , Office of the Ohio Attorney General.


ORDER

KAREN L. LITKOVITZ, Magistrate Judge.

Plaintiff, an inmate at the Southern Ohio Correctional Facility ("SOCF") proceeding pro se, brings this civil rights action under 42 U.S.C. § 1983 alleging violation of his constitutional rights by prison employees. This matter is before the Court on defendants' motion to dismiss (Doc. 12), plaintiff's response in opposition (Doc. 16), plaintiff's motion to amend his complaint (Doc. 15), and defendants' motion to stay the deadline to file their reply memorandum (Doc. 17).

I. Procedural Background

Plaintiff filed his complaint in August 2016. (See Docs. 1 and 7-1). Defendants moved to dismiss the complaint for failure to state a claim on November 7, 2016. (Doc. 12). On November 28, 2016, plaintiff filed a motion to amend the complaint as a matter of course. (Doc. 15). The next day, plaintiff filed his response in opposition to the motion to dismiss his original complaint. (Doc. 16). On December 5, 2016, defendants moved to stay the deadline for their reply memorandum until after the Court rules on plaintiff's motion to amend the complaint. (Doc. 17).

II. Resolution

"A party may amend its pleading once as a matter of course within . . . 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier." Fed. R. Civ. P. 15(a)(1)(B). Under the Federal Rules of Civil Procedure in effect before December 1, 2016, three days are added to a party's period to respond when service of the motion requiring a response is made electronically or by mail. Fed. R. Civ. P. 6(d).

Here, defendants filed their motion to dismiss the original complaint on November 7, 2016 and served a copy of the motion on plaintiff by mail. (Doc. 12 at 15). Thus, plaintiff had until December 1, 2016 to file an amended complaint as a matter of course. See Fed. R. Civ. P. 6(d) and 15(a)(1)(B). Accordingly, plaintiff's motion to amend the complaint filed on November 28, 2016 was timely and is hereby GRANTED. Because plaintiff's amended complaint replaces the original complaint, defendants' motion to dismiss the original complaint and motion to stay the deadline to file a reply memorandum are DENIED AS MOOT. See ComputerEase Software, Inc. v. Hemisphere Corp., No. 1:06-cv-247, 2007 WL 852103, at *1 (S.D. Ohio Mar. 19, 2007) ("Since the amended complaint replaces the original complaint, the motion to dismiss the original complaint is moot.").

III. Conclusion

Based on the foregoing, plaintiff's motion for leave to amend (Doc. 15) is GRANTED. The Clerk of Court is DIRECTED to file plaintiff's amended complaint (Doc. 15-1 and 15-2). Defendants' motion to dismiss the original complaint (Doc. 12) and motion to stay the deadline to file a reply memorandum (Doc. 17) are DENIED AS MOOT.

IT IS SO ORDERED.


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