United States District Court, D. Nevada
J. KOPPE UNITED STATES MAGISTRATE JUDGE.
November 8, 2016, Plaintiff filed a motion for leave to amend
accompanied by an amended complaint. Docket Nos. 20, 21.
Defendants filed a response in limited opposition. Docket No.
23. Plaintiff and Defendants both framed the issue as whether
Plaintiff should be permitted leave to amend. Docket No. 20
at 1; Docket No. 23 at 23 at 5. The Court then followed suit,
and denied without prejudice leave to amend based on
procedural deficiencies with Plaintiff's motion. Docket
No. 26. The Court now reconsiders that order sua
sponte. Cf. United States v. Martin, 226 F.3d
1042, 1049 (9th Cir. 2000) (courts have authority to
reconsider non-final orders sua sponte). The Court
concludes that it erred by not construing Plaintiff's
previous filing as amending the complaint as a matter of
course under Rule 15(a)(1)(B) of the Federal Rules of Civil
pertinent part, Rule 15 provides as follows:
A party may amend its pleading once as a matter of course
within: (A) 21 days after serving it, or (B) if the
pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days
after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier.
Civ. P. 15(a)(1) (emphasis added). Complaints require
responsive pleadings. See Fed. R. Civ. P. 12(a). As
such, the time frame for amending a complaint as a matter of
course is governed by subsection (B) of Rule 15(a)(1), which
instructs that the time for seeking amendment as a matter of
course turns on service of a responsive pleading or a
specified Rule 12 motion. So long as no responsive pleading
or enumerated Rule 12 motion has been served, a plaintiff is
permitted to amend her complaint once without leave of court.
See, e.g., Vanguard Outdoor, 648 F.3d at
In this case, Defendants have not filed an answer or an
enumerated Rule 12 motion, so Plaintiff's filing of her
amended complaint was within the time frame permitting
amendment as a matter of course without the need to seek
leave. Especially given her status as a pro se
litigant, the Court should have construed her filings as
such, and simply denied her motion for leave to amend as
the Court RECONSIDERS sua sponte
its prior order (Docket No. 26) denying Plaintiffs motion to
amend the complaint and striking the amended complaint as
improvidently docketed. Instead, the Court
INSTRUCTS the Clerk's Office to
reactivate the amended complaint (Docket No. 21), and the
Court DENIES as unnecessary the motion for
leave to amend (Docket No. 20).
time the above motion for leave to amend was pending,
Defendants moved for an order giving them 45 days to respond
to the amended complaint if the Court allowed it to be filed.
Docket No. 24. In particular, Defendants contended that they
required additional time to respond to the amended complaint
because it “provides new legal theories and requests to
add parties that the Office of the Attorney General is not
yet authorized to represent.” Id. at 2. The
Court granted that request. Docket No. 25. Given that the
Court herein finds Plaintiff was permitted to file her
amended complaint as a matter of course, the Court similarly
will allow Defendants 45 days from the issuance of this order
to respond to the amended complaint.
 In arguing that Plaintiff must obtain
leave to amend, Defendants relied on Rule 15(a)(1)(A), which
allows amendment as a matter of course if filed within 21
days of service of the underlying pleading. See
Docket No. 23 at 5 (referencing pre-2009 version of rule,
which provides for amendment as a matter of course within 20
days of service of underlying pleading). Subsection (A) is
inapplicable here, however, as it applies to amendments to
pleadings to which no responsive pleading is allowed.
See, e.g., Vanguard Outdoor, LLC v. City of Los
Angeles, 648 F.3d 737, 748 (9th Cir. 2011) (adopting
district court decision as its own).
 The Court screened Plaintiff's
initial complaint, and then stayed the case so the parties
could participate in an early inmate mediation. See
Docket No. 3 at 10-11; see also Docket No. 12
(extending stay). The fact that the deadline by which
Defendants had to respond to the initial case was stayed does
not change the Court's determination that Plaintiff was
permitted to amend as a matter of course. See, e.g.,
Vanguard Outdoor, 648 F.3d at 748.
 Some courts have held that the filing
of an unnecessary motion for leave to amend waives the
matter-of-course amendment right. See, e.g.,
Coventry First, LLC v. McCarty, 605 F.3d 865, 870
& n.2 (11th Cir. 2010). Even the courts that have
recognized such a waiver have been reluctant to apply it to a
pro se litigant. See, e.g., Id. at 870 n.2
(distinguishing prior case on that ground). The Ninth Circuit
has repeatedly highlighted the duty of courts to liberally
construe the filings of pro se litigants, especially
prisoners bringing civil rights claims. E.g.,
Blaisdell v. Frappiea, 729 F.3d 1237, 1241 (9th Cir.
2016). Based on the circumstances of this case, the Court
declines to find that Plaintiff waived her ability to file an
amended complaint as a matter of course by unnecessarily
filing a motion seeking leave to amend.
To the extent it is not accepting service on behalf of any
Defendant, within 21 days of this order, the Attorney
General's Office shall file a notice identifying the
defendant(s) for whom it does not accept service and shall
file under ...