United States District Court, D. Colorado
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE
Y. WANG UNITED STATES MAGISTRATE JUDGE
matter comes before the court on two motions:
Defendants Rick Raemsich, Renae Jordan, and Susan Tiona's
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (the
“Motion to Dismiss”), filed January 24, 2019,
see [#51]; and
Plaintiff Robert JW McCleland's (“Plaintiff”
or “Mr. McCleland”) Motion for Leave to File
Amended Complaint (the “Motion to Amend”), filed
February 14, 2019, see [#59].
presiding judge, the Honorable Philip A. Brimmer, referred
the Motions to the undersigned pursuant to 28 U.S.C. §
636(b) and the Memoranda dated January 25 and February 15,
2019 [#52; #60]. Having reviewed the Motions and associated
briefing, applicable case law, and entire docket, this court
CONSTRUES the Motion to Amend as a Notice of
filing an amended pleading by consent pursuant to
D.C.COLO.LCivR 15.1(a) and respectfully
RECOMMENDS that the Motion to Dismiss be
DENIED AS MOOT.
initiated this action by filing his pro se Complaint
on January 29, 2018, alleging that several Colorado
Department of Corrections employees were and/or are
deliberately indifferent to his serious medical condition of
Hepatitis-C. See generally [#1]. Per the Honorable
Gordon P. Gallagher's directive, Plaintiff filed an
Amended Complaint on March 16, 2018. [#12]. Magistrate Judge
Gallagher then granted Mr. McCleland leave to file a Second
and Third Amended Complaint. See [#16; #19]. Then,
on October 11, 2018, the Honorable Lewis T. Babcock drew
Plaintiff's Third Amended Complaint in its entirety to
Judge Brimmer and the undersigned. See [#21].
United States Marshals Service served the Third Amended
Complaint on the named Defendants. See [#22; #26;
#33; #34; #38]. After the court granted extensions of time to
answer or respond to the Third Amended Complaint but before
Defendants responded, Mr. McCleland sought leave to file a
Fourth Amended Complaint on December 21, 2018. See
[#43]. Because Defendants did not object to Plaintiff's
request, this court construed Plaintiff's Motion as a
Notice of filing an amended pleading by consent pursuant to
D.C.COLO.LCivR 15.1(a), and directed the Clerk of the Court
to docket Plaintiff's Fourth Amended Complaint as the
operative pleading. See [#48]. The Fourth Amended
Complaint became the operative pleading on January 10, 2018.
January 24, 2019, Defendants Rick Raemsich, Deborah Borrego,
Dayna Johnson, Susan Tiona, and Renae Jordan (collectively,
“CDOC Defendants”) filed an Answer to the Fourth
Amended Complaint and Defendants Rick Raemsich, Renae Jordan,
and Susan Tiona filed the instant Motion to Dismiss.
See [#50; #51]. Plaintiff responded to the Motion to
Dismiss on February 14, 2019. See [#58]. That same
day, he also filed the instant Motion to Amend, requesting
leave to file a Fifth Amended Complaint. See [#59].
The CDOC Defendants have since responded to the Motion to
Amend, indicating that they do not oppose the requested
relief. See [#62]. Thus, this court concludes that
the Motions are ripe for resolution.
15(a)(2) of the Federal Rules of Civil Procedure governs the
instant Motion to Amend, and provides that leave to amend
“shall be freely given when justice so requires.”
Fed.R.Civ.P. 15(a)(2). The court may refuse leave to amend
upon a showing of undue delay, undue prejudice to the
opposing party, bad faith or dilatory motive, failure to cure
deficiencies by amendments previously allowed, or futility of
amendment. Frank v. U.S. West, Inc., 3 F.3d 1357,
1365 (10th Cir. 1993). The District's Local Rule of Civil
Practice 15.1(a) also contemplates that a party may file an
amended pleading with the consent of the opposing party.
D.C.COLO.LCivR 15.1(a). Whether to allow amendment is within
the trial court's discretion. Burks v. Oklahoma
Publ'g Co., 81 F.3d 975, 978-79 (10th Cir. 1996).
Mr. McCleland seeks leave to file a Fifth Amended Complaint
to address the deficiencies identified in the Motion to
Dismiss. See [#59]. The CDOC Defendants do not
oppose the Motion to Amend. [#62 at ¶ 8]. Thus, this
court construes the Motion to Amend as a Notice of filing an
amended pleading by consent pursuant to D.C.COLO.LCivR
15.1(a), rendering the Fifth Amended Complaint the operative
pleading in this matter.
an amended pleading supersedes the pleading it modifies,
thereby mooting any motions to dismiss directed at an
inoperative pleading. See Gotfredson v. Larsen LP,
432 F.Supp.2d 1163, 1172 (D. Colo. 2006). Accordingly, the
Motion to Dismiss is directed at an inoperative pleading,
rendering it moot. See Strich v. United States, No.
09-cv-01913-REB-KLM, 2010 WL 14826, at *1 (D. Colo. Jan. 11,
2010) (citations omitted) (“The filing of an amended
complaint moots a motion to dismiss directed at the complaint
that is supplanted and superseded.”). Indeed, the CDOC
Defendants appear to concede this point in their Response to
the Motion to Amend, and assert, “[t]o the extent that
there are defects in Plaintiff's Fifth ...