USSERY v. HOUSTON COUNTY GEORGIA et al

Filing 13

ORDER (Griffth Notice) re #9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MARK DANIEL HEBERLIG, HOUSTON COUNTY GEORGIA. If Ussery wishes to respond, he must do so no later than TWENTY-ONE DAYS from the receipt of this Order. The Clerk is DIRECTED to mail a copy of the motion to dismiss and its exhibits (Docs. 9; 9-1; 9-2; 12) to Ussery at his last known address. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 5/9/2024. (kat)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
DONALD J. USSERY, JR.,
Plaintiff,
v.
HOUSTON COUNTY, GEORGIA, et al.,
Defendants.
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CIVIL ACTION NO. 5:24-cv-116 (MTT)

ORDER
Defendants Houston County, Georgia and Mark Daniel Heberlig have moved to
dismiss plaintiff Donald Ussery, Jr.’s complaint for lack of jurisdiction and for failure to
state a claim. Doc. 9. In an effort to afford Ussery, who is proceeding pro se, adequate
notice and time to respond to the defendants’ motion, the following notice is given. See
Griffith v. Wainwright, 772 F.2d 822 (11th Cir. 1985). If Ussery wishes to respond, he
must do so no later than TWENTY-ONE DAYS from the receipt of this Order. 1
If Ussery does not timely respond to the motion to dismiss, the Court may
dismiss his claims against the defendants. Under the procedures and policies of this
Court, motions to dismiss are normally decided on briefs. Ussery may submit his
argument to this Court by filing a brief in opposition to the motion to dismiss. Unless the
Court has granted prior permission, any brief should not exceed 20 pages. M.D. Ga.
L.R. 7.4.

The Clerk is DIRECTED to mail a copy of the motion to dismiss and its exhibits (Docs. 9; 9-1; 9-2; 12) to
Ussery at his last known address. Thereafter, all notices or other papers may be served on Ussery
directly by mail at his last known address.
1

The Court evaluates a motion to dismiss based on lack of subject matter
jurisdiction using the following standard:
Federal Rule of Civil Procedure 12(b)(1) authorizes the Court to dismiss claims
for lack of subject matter jurisdiction. When subject matter jurisdiction is challenged,
“the burden is on the plaintiff to prove that jurisdiction exists.” OSI, Inc. v. United States,
285 F.3d 947, 951 (11th Cir. 2002). A motion to dismiss for lack of subject matter
jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) generally takes one of
two forms—a facial attack or a factual attack. Garcia v. Copenhaver, Bell & Assocs.
M.D.'s, 104 F.3d 1256, 1260-61 (11th Cir.1997). “A facial attack on the complaint
requires the court merely to look and see if the plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in his complaint are taken as true for the
purposes of the motion.” Stalley v. Orlando Reg'l Heathcare Sys., Inc., 524 F.3d 1229,
1232-33 (11th Cir. 2008). A factual attack, however, “challenges the existence of
subject matter jurisdiction using material extrinsic from the pleadings, such as affidavits
or testimony.” Id. at 1233.
The Court evaluates a motion to dismiss based on failure to state a claim using
the following standard:
The Federal Rules of Civil Procedure require that a pleading contain “a short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). To avoid dismissal pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter … to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A claim is facially plausible when “the court [can] draw the

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reasonable inference that the defendant is liable for the misconduct alleged.” Id.
“Factual allegations that are merely consistent with a defendant’s liability fall short of
being facially plausible.” Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir.
2012) (internal quotation marks and citations omitted).
At the motion to dismiss stage, “all well-pleaded facts are accepted as true, and
the reasonable inferences therefrom are construed in the light most favorable to the
plaintiff.” FindWhat Inv. Grp. v. FindWhat.com., 658 F.3d 1282, 1296 (11th Cir. 2011)
(internal quotation marks and citations omitted). But “conclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will not
prevent dismissal.” Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 485 (11th Cir. 2015)
(cleaned up). The complaint must “give the defendant fair notice of what the … claim is
and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (internal quotation
marks and citation omitted). Where there are dispositive issues of law, a court may
dismiss a claim regardless of the alleged facts. Patel v. Specialized Loan Servicing,
LLC, 904 F.3d 1314, 1321 (11th Cir. 2018).
The Court further notes that it may consider body camera footage on a motion to
dismiss. See Baker v. City of Madison, Ala., 67 F.4th 1268, 1276-78 (11th Cir. 2023);
McDowell v. Gonzalez, 820 F. App’x 989, 992 (11th Cir. 2020); Quinette v. Reed, 805 F.
App’x 696, 700 (11th Cir. 2020).
SO ORDERED, this 9th day of May, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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