Rodriguez v. Thomas

Filing 18

ORDER directing Plaintiff to file any objections to 14 MOTION to Dismiss; or to otherwise inform the court of his decision not to object to Defendant's motion within twenty-one days of the date of this Order. The Clerk of Court is instructed to attach a copy of Rule 41 and 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 1/23/2013. (csr)

FILED
U.S. 013TRCT COURT
0!'!.
IN THE UNITED STATES DISTRICT COV4IT
FOR THE SOUTHERN DISTRICT OF GERhN 23 P 2: Sb
BRUNSWICK DIVISION
CL ER;
30.01ST,61. r5
A.
,

EDWARD RODRIGUEZ,
Plaintiff,
vs.

CIVIL ACTION NO.: CV212-009

KURT THOMAS,
Defendant.
ORDER
Plaintiff, proceeding pro se, filed this complaint on January 17, 2012, pursuant to the
Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. The United States of America' has
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 prose 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. Miree v. Dekalb
County, 433 U.S. 25, 27 n.2,(1977); Blum v. Morgan Guar. Trust Co., 709 F.2d 1463, 1466
(11th Cir. 1983). The Supreme Courtin Conl€yv. Gibson, 355 U.S. 41,45,46 (1957) stated
that:
1
On December 27, 2012, the United States of America filed a Notice of Substitution of the party Defendant
in this case.

o 72A
W. 8/82)

I

[i]n appraising the sufficiency of the complaint we follow, of
course, the accepted rule that a complaint should not be
dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.
The granting of a motion to dismiss is disfavored and rare. Sosa v. Coleman, 646 F.2d
991, 993 (5th Cir. Unit B June 1981).2 Furthermore, a claim, especially one presented in a
case by a pro se litigant, should not be dismissed unless it appears that the plaintiff can
prove no facts which would entitle him to relief. Dykes v. Hosemann, 743 F.2d 1488, 1499
(11th Cir. 1984). Furthermore a local rule, such as Local Rule 7.5 of this court,' should not
in any way serve "as a basis for dismissing a pro se civil rights complaint where, as here,
there is nothing to indicate plaintiff ever was made aware of it prior to dismissal." Mitchell
v. Inman, 682 F.2d 886, 887 (11th Cir. 1982).
Accordingly, Plaintiff is hereby ORDERED to file any objections to the Defendant's
motion for a dismissal, or to otherwise inform the court of his decision not to object to
Defendant's motion within twenty-one (21) days of the date of this Order. See Griffith v.
Wainright, 772 F.2d 822, 825 (11th Cir. 1 985)(espousing importance of strict adherence to
notice requirements in pro se motions for summary judgment). Should Plaintiff not timely
respond to Defendant's 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

2
Decisions of the former Fifth Circuit, Unit B, rendered after September 31, 1981, are binding
precedent in this Circuit. Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982).

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 respond shall indicate that there is no opposition to a
motion. (emphasis added).
2
AO 72A
(Rev. 8/82)

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. Cm P., t the copy of this Order that is served on the Plaintiff.
SO ORDERED, this

i 3 day of January, 2013.

I E. GRAHAM
fMES
NITED STATES MAGISTRATE JUDGE

3
r) 72A
ev. 8/82)