Winberly Jr. v. Broome et al

Filing 25

Plaintiff is ORDERED to file any response in opposition to Defendants' 23 MOTION to Dismiss or to inform the court of his decision not to oppose Defendants' motion within twenty-one (21) days of the date of this Order. The Clerk of Court is hereby instructed to attach a copy of Federal Rules of Civil Procedure 41 and 12 to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge R. Stan Baker on 4/19/2016. (csr)

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

LEONARD WIMBERLY, JR.,
Plaintiff,

CIVIL ACTION NO.: 6:15-cv-23

v.
DEAN BROOME; NURSE GAIL FERRA;
and NURSE MARTHA MIDDLETON,
Defendants.

ORDER
This matter is before the Court on Defendants’ Motion to Dismiss Plaintiff’s Amended
Complaint filed on March 29, 2016. (Doc. 23.) The Court provides instructions to Plaintiff
regarding Defendants’ Motion to Dismiss which Plaintiff is urged to follow.
A motion to dismiss is dispositive in nature, meaning that the granting of a motion to
dismiss results in the dismissal of individual claims or an entire action. Consequently, the Court
is reluctant to rule on the Motion to Dismiss without receiving a response from the Plaintiff or
ensuring that Plaintiff is advised of the potential ramifications caused by his failure to respond.
Once a motion to dismiss 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). Additionally, 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, 1 should not in any way 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 response in opposition to the
Defendants’ motion for a dismissal or to inform the court of his decision not to oppose
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 Plaintiff
does not oppose the motion and will dismiss Plaintiff’s case for failure to prosecute and follow
this Court’s Orders. See Local Rule 7.5.
To assure that Plaintiff’s 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

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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).

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instructed to attach a copy Federal Rules of Civil Procedure 41 and 12 to the copy of this Order
that is served on the Plaintiff.
SO ORDERED, this 19th day of April, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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