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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02381-PAB-KLM

SALVADOR MAGLUTA,

Plaintiff,

v.

UNITED STATES FEDERAL BUREAU OF PRISONS,

THOMAS R. KANE, acting Director of the Federal Bureau of Prisons,

MICHAEL NALLEY, Regional Director of the BOP for the North Central Region,

CHARLES DANIELS, Warden of USP Florence,

HAROLD WATTS, Federal Bureau of Prisons Administrator, National Inmate Appeal,

MILUSNIC, Assistant Warden, ADX Florence, Colorado,

RON WILEY, Ex-Warden, ADX Florence, Colorado,

LARIVA, Executive Director, ADX Florence, Colorado,

BANUELOS, Lieutenant, USP Florence, Colorado,

MASSEY, Officer, USP Florence, Colorado,

DUVAL, Officer, USP Florence, Colorado,

STEGAL, Officer, USP Florence, Colorado,

JOHNSON, Associate Warden, USP Florence, Colorado,

ANDY FENLON, Counselor, ADX Florence, Colorado,

JAVERNICK, CMC, ADX Florence, Colorado,

PATRICK WHALEN, Ex-Warden, FDC Miami, and

VANEC, Assistant SIA, USP Florence, Colorado, and

JOHN DOES, unnamed and to be identified later,

Defendants.

_____________________________________________________________________

MINUTE ORDER

_____________________________________________________________________

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the second Joint Motion to Reset Scheduling

Conference [Docket No. 26; Filed March 22, 2012] (the “Motion to Reset”) and Plaintiff’s

Motion for Leave to File Second Amended Complaint [Docket No. 27; Filed March 22,

2012] (the “Motion to Amend”).

The Court has discretion to grant a party leave to amend its pleadings. Foman v.

Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give

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Motion. D.C.COLO.LCivR 7.1C (“Nothing in this rule precludes a judicial officer from ruling on a

motion at any time after it is filed.”). Where, as here, the Court finds that Plaintiff has shown good

cause for granting leave to amend, waiting for a response is unnecessary and inefficient.

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leave when justice so requires.”). “In the absence of any apparent or declared reason –

such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the opposing

party by virtue of allowance of the amendment, futility of the amendment, etc. – the leave

sought should, as the rules require, be ‘freely given.’” Id. (quoting Fed. R. Civ. P. 15(a)(2)).

Potential prejudice to a defendant is the most important factor in considering whether a

plaintiff should be permitted to amend the operative complaint. Minter v. Prime Equip. Co.,

451 F.3d 1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the

[proposed] amendment unfairly affects the defendants in terms of preparing their defense

to [claims asserted in the] amendment.” Id. (quotation omitted). 

Plaintiff represents that Defendants oppose his request to file a Second Amended

Complaint. [#27] at 3. However, this matter is in the very early stages of litigation; the

Court has not yet entered a Scheduling Order. Thus, the Court does not believe that

Defendants will be unfairly prejudiced in terms of preparing their defense. Additionally,

Plaintiff explains that the Second Amended Complaint includes factual allegations related

to events that happened after the date that the First Amended Complaint was entered, thus

the Court should permit amendment pursuant to Rule 15(d). Id. at 2-3. Considering the

early stage of litigation and that the proposed amendments relate to events post-dating the

First Amended Complaint, the Court finds that leave to amend pursuant to Rule 15(a)(2)

should be freely given under these circumstances.1

 Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Leave to File Second

Amended Complaint [#27] is GRANTED. The Clerk of Court is directed to enter the

Second Amended Complaint located at Docket No. 27-1.

IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss [## 17, 18] are

DENIED AS MOOT. See Schwartz v. Booker, No. 09-cv-00915-WJM-KMT, 2011 WL

2560016, at *2 (D. Colo. June 28, 2011) (finding that an amended complaint supercedes

the original complaint as the operative pleading, and that the pending motion to dismiss

was likewise mooted by the filing of the amended complaint) (citations omitted).

IT IS FURTHER ORDERED that all Defendants, new or already served, shall

answer or otherwise respond to the Second Amended Complaint on or before May 25,

2012.

IT IS FURTHER ORDERED that the Motion to Reset [#26] is GRANTED. The

Scheduling Conference set for March 29, 2012, is VACATED and RESET to June 18,

2012, at 9:30 a.m. in Courtroom C-204, Second Floor, Byron G. Rogers United States

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Courthouse, 1929 Stout Street, Denver, Colorado.

IT IS FURTHER ORDERED that the parties shall submit their proposed scheduling

order pursuant to District of Colorado Electronic Case Filing (“ECF”) Procedures on or

before June 13, 2012. All other provisions of the Order Setting Scheduling/Planning

Conference issued September 15, 2011 [#3] remain in effect.

Dated: March 26, 2012

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