The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE: REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE [Doc. No. 49] FINDING AS MOOT PLAINTIFF'S MOTION TO AMEND FIRST AMENDED COMPLAINT [Doc. No. 29]
On April 20, 2011, David Harrera-Roman ("Plaintiff"), an inmate currently incarcerated at the United States Penitentiary in Tucson, Arizona, and proceeding pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983, which the Court liberally construed as an action filed pursuant to Bivens v. Six Unknown Named Fed. Narcotics Agents, 403 U.S. 388 (1971). On August 8, 2011, Plaintiff filed a First Amended Complaint and the Court found Plaintiff's claims sufficiently pleaded to survive the sua sponte screening required by 28 U.S.C. §§ 1915(e)(2) and 1915A(b). On May 7, 2012, Plaintiff filed a motion to amend his complaint and a request for a status update. See Doc. No. 29. On June 18, 2012, Defendants filed a response to Plaintiff's motion, which included a request to dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 4(m). See Doc. No. 32. On December 28, 2012, Plaintiff filed a Second Amended Complaint. See Doc. No. 46.
Pursuant to 28 U.S.C. § 636(b) and Civil Local Rule 72.3, on February 4, 2013, United States Magistrate Judge Karen S. Crawford issued a Report recommending that Defendants' request for dismissal of the First Amended Complaint for improper service be granted and Plaintiff's motion to amend his First Amended Complaint be denied as moot. See Doc. No. 49. Plaintiff filed objections to the Report and Recommendation. See Doc. No. 50.
A district judge "may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions" on a dispositive matter prepared by a magistrate judge proceeding without the consent of the parties for all purposes. Fed. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1). An objecting party may "serve and file specific written objections to the proposed findings and recommendations," and "a party may respond to another party's objections." Fed. R. Civ. P. 72(b).
In reviewing a report and recommendation, "the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 676 (1980) (when objections are made, the court must make a de novo determination of the factual findings to which there are objections). Plaintiff primarily objects to the magistrate judge's recommendation that his First Amended Complaint be dismissed.
The Report and Recommendation contains a thoughtful analysis regarding Plaintiff's failure to properly serve Defendants with his First Amended Complaint. However, as mentioned above, Plaintiff has filed a Second Amended Complaint. A newly amended complaint supersedes the previously filed complaint. Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997). "This rule is premised on the notion that the 'amended complaint supersedes the original, the latter being treated thereafter as non-existent.'" Id., citing Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967). Therefore, once a plaintiff files an amended complaint, the previous pleading no longer serves any function in the case. Plaintiff's Second Amended Complaint supersedes his First Amended Complaint. Because Defendants request dismissal of a non-operative pleading, the request is moot. Likewise, Plaintiff's motion to amend his First Amended Complaint is moot based on the filing of his Second Amended Complaint. And while the Court finds no fault with the magistrate judge's well-reasoned analysis regarding improper service, the Court must find as moot the recommendation that Plaintiff's First Amended Complaint be dismissed on those grounds.
Based on the foregoing, the Court FINDS AS MOOT Defendants' request for dismissal of the First Amended Complaint and the magistrate judge's recommendation that the request be granted. The Court further FINDS AS MOOT Plaintiff's motion to amend his First Amended Complaint.
IT IS HEREBY ORDERED THAT Defendants shall answer or otherwise respond to Plaintiff's Second Amended Complaint on or before March 29, 2013. Defense counsel is instructed to contact the Chambers of Judge Anello to obtain a hearing date prior to filing a motion to dismiss the Second Amended Complaint.
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