MALDONADO v. FORD et al

Filing 56

ORDER for Response to Motion re 55 MOTION to Dismiss Complaint re 1 Complaint, : filed by ANTHONY COLON, COFFEE, KIRK, BENJAMIN FORD, TIMOTHY WARD, JESTER, BRUCE D SCOTT, BAUSHCUM, SPIKES. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 8/31/2021. (tam)

Case 5:19-cv-00421-MTT-CHW Document 56 Filed 08/31/21 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
PABLO F. MALDONADO,
Plaintiff,

:
:
:
v.
:
:
Warden BENJAMIN FORD, et al.,
:
Defendants.
:
____________________________________:

Case No. 5:19-cv-421 (MTT) (CHW)
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge

NOTIFICATION OF PRE-ANSWER MOTION TO DISMISS
Before the Court is a motion to dismiss filed by the Defendants. (Doc. 55). The Court is
required to advise Plaintiff of the significance of this motion. See Griffith v. Wainwright, 772 F.2d 822
(11th Cir. 1985) (per curiam). In an effort to afford Plaintiff, who is proceeding pro se, adequate notice
and time to respond to the Defendants’ motion, the following notice is given.
When considering a motion to dismiss, the Court must accept as true all facts set forth in the
plaintiff’s complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Wilchombe v. TeeVee
Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The Complaint
must include sufficient factual allegations “to raise a right to relief above the speculative level.”
Twombly, 550 U.S. at 555. “[A] formulaic recitation of the elements of a cause of action will not do.”
Id. Although the complaint must contain factual allegations that “raise a reasonable expectation that
discovery will reveal evidence of” the plaintiff’s claims, id. at 556, “Rule 12(b)(6) does not permit
dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of
those facts is improbable.’” Watts v. Fla. Int’l Univ., 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting
Twombly, 550 U.S. at 556).

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1. AMENDING THE COMPLAINT
Defendants’ motion to dismiss alleges there are certain deficiencies in Plaintiff’s Complaint.
In some situations, deficiencies in a complaint may be cured with a more carefully drafted complaint.
Under Fed. R. Civ. P. 15(a)(1)(B), a plaintiff “may amend its pleadings once as a matter of course
within . . . 21 days after service of a motion under Rule 12(b).” If Plaintiff thinks, based on Defendants’
motion to dismiss, that a more carefully drafted complaint or more specific allegations would state a
claim, he has 21 days to amend his complaint. Plaintiff should be aware that a dismissal could prevent
him from re-filing his claims if the running of the applicable statute of limitations would bar further
litigation. Brennan v. Comm’r, Ala. Dep’t of Corr., 626 F. App’x 939, 946 n.4 (11th Cir. 2015).
Plaintiff should, therefore, take the opportunity to amend his complaint to cure, if possible, the
deficiencies addressed in Defendants’ motion to dismiss.
2. RESPONDING TO AN ALLEGED FAILURE TO EXHAUST
Normally, when considering a motion to dismiss, the Court limits its consideration to the
pleadings and exhibits attached thereto, as well as the parties’ briefs. If, however, the defendants have
alleged that Plaintiff’s claims should be dismissed for failure to exhaust administrative remedies
available through the Georgia Department of Corrections, “[t]he judge properly may consider facts
outside of the pleadings to resolve a factual dispute as to exhaustion where doing so does not decide
the merits, and the parties have a sufficient opportunity to develop the record.” Trias v. Fla. Dep’t of
Corr., 587 F. App’x 531, 535 (11th Cir. 2014) (citing Bryant v. Rich, 530 F.3d 1368, 1376 (11th Cir.
2008)). If Plaintiff is responding to a motion to dismiss for failure to exhaust, this is his opportunity to
“develop the record.” Id. Plaintiff may provide the Court with affidavits and/or other documents
showing that he has, in fact, exhausted available administrative remedies.

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3. BRIEFS
Under the procedures and policies of this Court, motions to dismiss normally are decided on
briefs. Plaintiff may submit his argument to this Court by filing a brief or briefs in opposition to the
Defendants’ motion to dismiss. Unless the Court has granted prior permission, any brief should not
exceed 20 pages. M.D.Ga. Civ. R. 7.4. FAILURE OF PLAINTIFF TO RESPOND TO AND
REBUT THE LEGAL ARGUMENTS SET FORTH IN DEFENDANTS’ BRIEFS MAY
RESULT IN THESE STATEMENTS BEING ACCEPTED AS UNCONTESTED AND
CORRECT. The Court could grant judgment to Defendants and there would be no trial or further
proceedings. Accordingly, Plaintiff is NOTIFIED of his right to amend his complaint, submit a
response brief or briefs, and, if responding to a motion for dismiss for failure to exhaust administrative
remedies, submit any affidavits and/or documents showing he has exhausted. As explained above, if
Plaintiff fails to amend his complaint and the applicable statute of limitations has expired since he filed
the original complaint, the Plaintiff will be barred from re-filing following dismissal. If Plaintiff fails
to file a brief in opposition to a motion to dismiss, a final judgment may be rendered against him if
otherwise appropriate under law. Any amendment, response brief, affidavits and/or other documents
must be filed WITHIN 21 DAYS of receipt of this Order. Fed. R. Civ. P. 15(a)(1)(B); M.D.Ga. Civ.
R. 7.2. Thereafter, the Court will consider the Defendants’ motion to dismiss and any opposition to the
same filed by Plaintiff, and will issue its ruling.

SO ORDERED, this 31st day of August, 2021.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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