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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

PEDRO VELEZ, Case No. 09-10519

Plaintiff, Denise Page Hood

 United States District Judge

vs.

Michael Hluchaniuk

MICHIGAN DEPARTMENT United States Magistrate Judge

OF CORRECTIONS, et al.,

Defendants.

 /

ORDER GRANTING PLAINTIFF’S MOTION

FOR LEAVE TO AMEND COMPLAINT (Dkt. 11) AND

DEFENDANT MDOC’S MOTION TO EXTEND (Dkt. 13)

Plaintiff filed a complaint against defendants on February 12, 2009. (Dkt.

1). Plaintiff then filed a motion for leave to file an amended complaint on April

14, 2009. (Dkt. 11). One of the defendants, the MDOC, filed a motion to extend

the time to answer the complaint. (Dkt. 13). 

Where “no defendant has yet filed a responsive pleading to the original

complaint,” a plaintiff is “entitled to amend his complaint as of right pursuant to

Fed.R.Civ.P. 15(a).” Reynolds-Bey v. Harris-Spicer, 2007 WL 1063304, *1 (W.D.

Mich. 2007); see also Sousa v. Ferguson, 2005 WL 1796131 (W.D. Mich. 2005)

(An “amendment as of right under Fed.R.Civ.P. 15(a) can be forestalled only by

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the service of a ‘responsive pleading,’” and “a motion to dismiss or for summary

judgment is not considered to be a ‘responsive pleading’ for the purposes of Rule

15(a).”). Thus, plaintiff may amend his complaint as of right.

Based on the foregoing, plaintiff’s motion to amend is GRANTED and

plaintiff has 21 days from the date of entry to this order to file an amended

complaint with the Court. Defendant MDOC’s motion for extension is

GRANTED and defendant MDOC will have 60 days thereafter in which to answer

or otherwise respond to plaintiff’s amended complaint.

The Court further ORDERS that plaintiff must serve all defendants other

than the MDOC, who has already appeared in this action, in accordance with

Federal Rule of Civil Procedure 4(e) or 4(h), as appropriate, or plaintiff may

request that these defendants waive service under Federal Rule 4(d), using the

appropriate form. For the convenience of plaintiff, who is incarcerated, the Court

will mail a copy of the waiver of service form along with this Order to plaintiff.

IT IS SO ORDERED.

The parties to this action may object to and seek review of this Order, but are

required to file any objections within 10 days of service as provided for in 28

U.S.C. § 636(b)(1) and Local Rule 72.1(d)(2). A party may not assign as error any

defect in this Order to which timely objection was not made. Fed.R.Civ.P. 72(a). 

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Any objections are required to specify the part of the Order to which the party

objects and state the basis of the objection. Pursuant to Local Rule 72.1(d)(2), any

objections must be served on this Magistrate Judge.

s/Michael Hluchaniuk 

Date: April 24, 2009 Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on April 24, 2009, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to the following: Julia R. Bell, and I certify that I have mailed by

United States Postal Service the paper to the following non-ECF participant(s):

Pedro Velez, # 376831, SAGINAW CORRECTIONAL FACILITY, 9625 Pierce

Road, Freeland, MI 48623.

s/James P. Peltier 

Courtroom Deputy Clerk

U.S. District Court

600 Church Street

Flint, MI 48502

(810) 341-7850

pete_peltier@mied.uscourts.gov

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