Plaintiff is a pretrial detainee proceeding in forma pauperis and pro se. On November 20, 2009, defendants filed a motion to dismiss, presently noticed for hearing on January 14, 2010. However, on December 21, 2009, plaintiff filed an amended complaint as of right. Fed. R. Civ. P. 15(a). Because the motion to dismiss is directed to the original complaint, the court will deny the motion to dismiss without prejudice and will vacate the hearing.
The amended complaint states a cognizable civil rights claim against defendants Simmons and Moore, who have been served with process and have appeared in this action. The amended complaint also states a cognizable civil rights claim against defendant Deputy A. Knapp. If the allegations of the amended complaint are proven, plaintiff has a reasonable opportunity to prevail on the merits of this action.
Accordingly, IT IS HEREBY ORDERED that:
1. Defendants' November 20, 2009 motion to dismiss is denied without prejudice.
2. The January 14, 2010 hearing on defendants' motion to dismiss is vacated.
3. The Clerk of the Court shall send plaintiff one USM-285 form, one summons, an instruction sheet and a copy of the amended complaint filed December 21, 2009.
4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit the completed Notice to the court with the following documents:
a. One completed summons;
b. One completed USM-285 form for defendant Knapp; and
c. Two copies of the endorsed amended complaint filed December 21, 2009.
5. Plaintiff need not attempt service on defendant and need not request waiver of service. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendant pursuant to Federal Rule of Civil Procedure 4 without prepayment of costs.
6. Failure to comply with this order may result in a recommendation that defendant Knapp be dismissed from this action.
7. Defendants Simmons and Moore shall file an answer to the amended complaint within thirty days ...