Bradley v. Hart et al

Filing 33

ORDER directing the Plaintiff to file any objections to the Defendants' 31 MOTION to Dismiss, or to otherwise inform the court of his decision to not to object within twenty-one (21) days of the date of this Order. The Clerk 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. Signed by Magistrate Judge James E. Graham on 11/13/2014. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

SHANNON BRADLEY,
Plaintiff,
CIVIL ACTION NO.: CV513-127

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J. DARRELL HART, former Warden;
SECURITY THREAT GROUP
ADMINISTRATION, Ware State Prison;
CEDRIC TAYLOR, Warden; ALISA
HAMMOCK, Deputy Warden; and
Sergeant GABRIEL ILLA,
Defendants.
ORDER

Plaintiff, an inmate presently incarcerated at Hays State Prison in Trion, Georgia, filed
his complaint pursuant to 42 U.S.C. § 1983. Defendants Hart, Taylor, Hammock, and lIla
have moved for a dismissal of Plaintiffs claims.
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

AO 72A

(Rev. 8/82)

Cii. 2011). A local rule, such as Local Rule 7.5 of this court,' should not in anyway serve as
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. Clv. P., to the copy of this Order that is
served on the Plaintiff.
SO ORDERED, this / - day of November, 2014.

XMES E. GRAHAM
NITED STATES MAGISTRATE JUDGE

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
AG 72A
(Rev. 8/82)