The opinion of the court was delivered by: Hon. Roger T. Benitez United States District Judge
(1) GRANTING PLAINTIFF'S MOTION SPEARS, et TO AMEND [Docket No. 14]; and (2) DENYING DEFENDANTS' MOTION TO DISMISS [Docket No. 10].
Plaintiff, Robert Hunt, a state prisoner currently incarcerated at Pleasant Valley State Prison in Coalinga, California, and proceeding pro se, submitted a civil rights Complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleged excessive force was used by San Diego Police Officers in violation of his constitutional rights on March 23, 2005. (See Compl. at 9-11.)
On June 19, 2007, Defendants filed a Motion to Dismiss Plaintiff's Complaint. (Docket No. 10.) On August 8, 2007, Plaintiff filed a notice of concession to the motion to dismiss and sought leave to file a First Amended Complaint.*fn1 (Docket No. 14.)
Under Federal Rule of Civil Procedure 15(a), "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served." A motion to dismiss is not a "responsive pleading" within the meaning of Rule 15. Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, 216 F.3d 764, 788 (9th Cir. 2000); see also Miles v. Department of Army, 881 F.2d 777, 781 (9th Cir. 1989) (stating "[A] motion to dismiss the complaint is not a responsive pleading."). Therefore, because "the filing of a [motion to dismiss] before [an] answer [does not] terminate the right to amend[,] . . . a motion for leave to amend (though unnecessary) must be granted if filed." Breier v. Northern Cal. Bowling Proprietors' Ass'n, 316 F.2d 787, 789 (9th Cir. 1963) (emphasis added).
In this case, Defendants did not file an Answer. Instead, Defendants filed a motion to dismiss. Because a motion to dismiss is not a responsive pleading, Plaintiff retained the right to amend his complaint once "as a matter of course" pursuant to Rule 15(a), and was not required to seek leave of court in order to amend his complaint. However, because Plaintiff has requested leave of court, his Motion to Amend is GRANTED.
Granting Plaintiff's motion to amend means his First Amended Complaint becomes the operative pleading for purposes of the present motion to dismiss. Accordingly, this Court DENIES Defendants' Motion to Dismiss as moot and GRANTS Defendants leave to file a renewed motion.