Davila v. Marshall et al

Filing 26

ORDER directing Plaintiff to file any objections to Defendants' 25 MOTION to Dismiss, or to otherwise inform the court of his decision not to object to the Defendants' motion within twenty-one days of the date of this Order. The Clerk is instructed to attach a copy of Rule 41, FED. R. CIV. P., as well as Rule 12, FED. R. CIV.P., to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge James E. Graham on 4/23/2013. (csr)

IN THE UNITED STATES DISTRICT COURT
FILED
FOR THE SOUTHERN DISTRICT OF GEORGI5 DISTRICT COURT
AUGUSTA DIVISION
BRflr K DIV.

2013 APR 23 A Il

ANTHONY DAVILA,
Plaintiff,

C LE R L_._4=cODST. O GP
CIVIL ACTION NO.: CVI 12-149

V.

LOGAN MARSHALL, Sheriff, and
FNU DURDEN, Captain,

Defendants
ORDER
Plaintiff, an inmate presently incarcerated at the McDuffle County Detention Center in
Thomson, Georgia, filed his complaint pursuant to 42 U.S.C. § 1983. Defendants have
moved for a dismissal of Plaintiffs claim.
The Court is reluctant to rule on said motion without receiving a response from the
Plaintiff or insuring that Plaintiff is advised of the potential ramifications caused by his failure
to respond. Once such a motion is filed, the opponent should be afforded a reasonable
opportunity to respond to or oppose such a motion. This Court must consider that the Plaintiff
in this case is a pro se litigant. Haines v. Kerner, 404 U. S. 519, 520 (1972). When a
defendant or defendants file a motion to dismiss, the court must construe the complaint
liberally in favor of plaintiff, taking all facts alleged by the plaintiff as true, even if doubtful in
fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 555 (2007).
The granting of a motion to dismiss without affording the plaintiff either notice or any
opportunity to be heard is disfavored. Tazoe v. Airbus S.A.S., 631 F.3d 1321, 1336-37 (11th
Cir. 2011). A local rule, such as Local Rule 7.5 of this court,' should not in any way serve as
Local Rule 7.5 states:
Unless. . . the assigned judge prescribes otherwise, each party opposing
a motion shall serve and file a response within fourteen (14) days of
service of the motion, except that in cases of motions for summary
judgment the time shall be twenty-one (21) days after service of the
motion. Failure to r es pond shall indicate that there is no opposition to a
motion. (emphasis added).
AU 72A
(Rev. 8/82)

a basis for dismissing a pro se complaint where, as here, there is nothing to indicate plaintiff
ever was made aware of it prior to dismissal. Pierce v. City of Miami, 176 F. App'x 12, 14
(11th Cir. 2006).
Accordingly, Plaintiff is hereby ORDERED to file any objections to the Defendants'
motion for a dismissal, or to otherwise inform the court of his decision not to object to
Defendants' motion within twenty-one (21) days of the date of this Order. Tazoe, 631 F.3d
at 1336 (advising that a court can not dismiss an action without employing a fair procedure).
Should Plaintiff not timely respond to Defendants' motion, the Court will determine that there
is no opposition to the motion. See Local Rule 7.5. In order to assure that Plaintiffs
response is made with fair notice of the requirements of the Federal Rules of Civil Procedure
regarding motions to dismiss, generally, and motions to dismiss for failure to state a claim
upon which relief may be granted, the Clerk of Court is hereby instructed to attach a copy of
Rule 41, FED. R. Civ. P., as well as Rule 12, FED. R. Civ. P., to the copy of this Order that is
served on the Plaintiff.
SO ORDERED, this

day of April, 2013.

AES E. GRAHAM
ITED STATES MAGISTRATE JUDGE

2
AO 72A
(Rev, 8/82)