United States District Court, D. South Carolina, Greenville Division
Gregory T. Christian, Plaintiff,
City of Greenville, South Carolina, Defendant.
Gregory T Christian, Plaintiff, Pro Se.
of Greenville South Carolina, Defendant, represented by Jack
Dalrymple Griffeth, Collins and Lacy & Ross B. Plyler,
Collins and Lacy.
ORDER AND REPORT OF MAGISTRATE JUDGE
F. McDONALD, Magistrate Judge.
plaintiff, who is proceeding pro se, alleges that
his constitutional rights were violated when he was searched
by officers of the City of Greenville Police Department.
Pursuant to the provisions of Title 28, United States Code,
Section 636(b)(1)(B), and Local Civil Rule 73.02(B)(2)(d)
(D.S.C.), this magistrate judge is authorized to review all
pretrial matters in cases filed under Title 42, United States
Code, Section 1983, and submit findings and recommendations
to the district court.
original complaint, the plaintiff named the City of
Greenville as the only defendant. On June 22, 2016, the
defendant filed a motion to dismiss the plaintiff's
complaint based upon insufficient service of process and
failure to state a claim (doc. 11). Pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975), the plaintiff
was advised of the motion to dismiss procedure and the
possible consequences if he failed to respond adequately
(doc. 14). Two days after the filing of the motion to
dismiss, on June 24, 2016, the plaintiff filed a motion to
amend his complaint to add Greenville Police Officer K.A.
Payne as a defendant (doc. 18). Also on June 24, 2016, the
plaintiff filed a motion for reissuance of summons as to the
defendant City of Greenville (doc. 20). On July 5, 2016, the
plaintiff mailed to the Clerk of Court an amended complaint
that includes allegations against both defendant City of
Greenville and proposed defendant Officer Payne.
to Federal Rule of Civil procedure 15(a), a plaintiff may
amend his pleading once a matter of course, meaning without
the opposing party's consent or the court's leave,
within 21 days after serving the pleading or within 21 days
after service of a responsive pleading or service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
Fed.R.Civ.P. 15(a). The plaintiff here filed his motion to
amend within the required time period. Accordingly, he may
file his amended complaint as a matter of course. While the
proposed amended complaint was received by the Clerk's
Office some ten days after the motion to amend was filed, it
is still within the required 21 day period after the filing
of the motion to dismiss.
timely filed amended pleading supersedes the original
pleading. Young v. City of Mount Ranier, 238 F.3d
567, 572 (4th Cir. 2001) ("As a general rule, an amended
pleading ordinarily supersedes the original and renders it of
no legal effect.'" (quoting Crysen/Montenay
Energy Co. v. Shell Oil Co., 226 F.3d 160, 162 (2d Cir.
2000)); see also Ohio River Vally Env. Coalition, Inc. v.
Timmermeyer, 77 F.Appx. 468, 471 (4th Cir. 2003)
(finding that once an amended pleading is interposed, the
original complaint "no longer performs any function in
the case"); 6 Charles Alan Wright et al., Federal
Practice and Procedure Â§ 1476 (3d ed. 2011) ("A
pleading that has been amended... supersedes the pleading it
modifies.... Once an amended pleading is interposed, the
original pleading no longer performs any function in the
case...."). As a result, motions directed at the
superseded pleading generally are to be denied as moot.
See, e.g., McCoy v. City of Columbia, C.A.
No. 3:10-132-JFA-JRM, 2010 WL 3447476, at *1-2 (D.S.C. Aug.
31, 2010) (adopting the magistrate judge's report and
recommendation to the extent it recommended that the motion
to dismiss be found as moot because the amended complaint
superseded the original complaint and rendered any attack
upon it moot).
upon the foregoing, IT IS ORDERED that the plaintiff's
motions to amend complaint (doc. 18) and for reissuance of
summons (doc. 20) are granted. The Clerk of Court is directed
to file the plaintiff's proposed amended complaint and to
issue the summonses for the defendants. Furthermore, IT IS
RECOMMENDED that the district court find the motion to
dismiss of the defendant City of Greenville (doc. 11) is
moot. Should the district court adopt this recommendation, a
new motion to dismiss is required should the defendants seek
to challenge the amended complaint.
SO ORDERED AND SO RECOMMENDED.
of Right to File Objections to Report and Recommendation
parties are advised that they may file specific written
objections to this Report and Recommendation with the
District Judge. Objections must specifically identify the
portions of the Report and Recommendation to which objections
are made and the basis for such objections. "[I]n the
absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must only satisfy
itself that there is no clear error on the face of the record
in order to accept the recommendation.'" Diamond
v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir.
2005) (quoting Fed.R.Civ.P. 72 advisory committee's
written objections must be filed within fourteen (14) days of
the date of service of this Report and Recommendation. 28
U.S.C. Â§ 636(b)(1); Fed.R.Civ.P. 72(b); see
Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal
Rule of Civil Procedure 5 may be accomplished by mailing
to timely file specific written objections to this Report and
Recommendation will result in waiver of the right to appeal
from a judgment of the District Court based upon such
Recommendation. 28 U.S.C. Â§ 636(b)(1); Thomas v.
Arn,474 U.S. 140 (1985); Wright v. Collins,766 F.2d ...