WHEELER v. POLITE et al

Filing 53

ORDER for Response to Motion re: 51 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by DAVIS. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 6/5/2024. (elp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JOHNATHAN ALLEN WHEELER,
Plaintiff,
v.
Warden JOSEPH POLITE, et al.,
Defendants.

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Case No. 5:23-cv-00199-MTT-CHW
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge

NOTIFICATION OF MOTION TO DISMISS
Before the Court is Defendant Davis’s motion to dismiss (Doc. 51) wherein he
relies, in part, on the pre-answer motion to dismiss, brief in support, and supporting
documents previously filed by the other Defendants. (Doc. 29). The Court provided notice
to Plaintiff regarding the previous motion to dismiss (Doc. 29), and Plaintiff has filed a
response (Doc. 41).
The Court hereby incorporates the cautions and parameters set forth in the prior
notification for Defendant Williams’s motion to dismiss. See Griffith v. Wainwright, 772
F.2d 822 (11th Cir. 1985) (per curiam). Plaintiff is reminded that under the procedures and
policies of this Court, motions to dismiss are normally decided on briefs. Plaintiff may
submit his argument to this Court by filing a brief in opposition to Defendant’s second
motion to dismiss. Unless the Court has granted prior permission, any brief should not
exceed 20 pages. M. D. Ga. Civ. R. 7.4. To the extent that Plaintiff has addressed the
alleged failure to exhaust, Plaintiff may choose to rest on the response he has already filed
with the Court.

FAILURE OF PLAINTIFF TO RESPOND TO AND REBUT THE LEGAL
ARGUMENTS SET FORTH IN DEFENDANT’S BRIEF MAY RESULT IN THESE
STATEMENTS BEING ACCEPTED AS UNCONTESTED AND CORRECT. The
Court could grant judgment to Defendant and there would be no trial or further
proceedings. Accordingly, Plaintiff is NOTIFIED of his right to amend his complaint,
submit a response brief, and, if responding to a motion to 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 the
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 Defendant’s motion to dismiss and any
opposition to the same filed by Plaintiff, and issue its ruling.
SO ORDERED, this 5th day of June, 2024.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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