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Martinez v. Owens

February 15, 2006

ANTHONY RAY MARTINEZ, PLAINTIFF,
v.
BILL OWENS, GOVERNOR, STATE OF COLORADO, JOE ORTIZ, EXECUTIVE DIRECTOR OF CDOC, GARY GOLDER, WARDEN, STERLING CORRECTIONAL FACILITY, AND CAPTAIN JOHN GIBSON, CAPTAIN, CDOC, STERLING CORRECTIONAL FACILITY, DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Boyd N. Boland

ORDER

This matter is before me on the following papers:

(1) Plaintiff's Motion to Remove Defendant's Without Prejudice, filed December 27, 2005;

(2) Plaintiff's Motion for Service at State Expense, filed January 13, 2006;

(3) Plaintiff's Amended Prisoner Complaint Pursuant to U.S.C. § 1983, received January 13, 2006; and

(4) Defendants Owens, Ortiz, Golder, and Gibson's Motion to Dismiss, filed November 25, 2005.

The plaintiff seeks leave to file an amended complaint, in the form submitted. The proposed amended complaint does not name defendants Bill Owens, Joe Ortiz, or Gary Golder, and it adds defendants Sergant [sic] Smith, Capt. Richard Mischiara, Kent Dennington, and Mr. Bodine. The plaintiff further seeks service of the summons and amended complaint at the State's expense.

The Federal Rules of Civil Procedure provide that a complaint may be amended as follows:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party.

Fed.R.Civ.P. 15(a).

A responsive pleading has not yet been served.*fn1 Therefore, the plaintiff may amend his pleading as a matter of course. Accordingly, the Clerk of the Court is directed to accept the proposed amended complaint for filing.

The United States Marshal will be directed by separate order to serve the summons and amended complaint on the new defendants.

The defendants' motion to dismiss is no longer directed at the operative complaint. Consequently, the motion to dismiss is denied without prejudice. The defendants may reassert their arguments, if ...


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