Brumfield v. Toole et al

Filing 41

ORDER directing Plaintiff to file any response in opposition to the Defendants' 37 Amended MOTION to Dismiss, 36 MOTION to Dismiss or to inform the court of his decision not to oppose within twenty-one (21) days of the date of this Order. The Clerk is instructed to attach a copy of Fed.R.Civ.P. 41 and 12 to the copy of this Order that is served on the Plaintiff. Signed by Magistrate Judge R. Stan Baker on 1/6/2017. (ca)

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

KEVIN DARNELL BRUMFIELD,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-1

v.
ROBERT TOOLE, et al.,
Defendants.

ORDER
Plaintiff, an inmate presently incarcerated at Hays State Prison in Trion, Georgia, filed his
complaint pursuant to 42 U.S.C. § 1983.

He is proceeding pro se and in forma pauperis.

Defendants Bobbit, Smith, and Toole filed a Motion to Dismiss on December 5, 2016.
(Docs. 36, 37.)
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, the Court ORDERS Plaintiff 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 cannot 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. 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 instructed

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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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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.
SO ORDERED, this 6th day of January, 2017.

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

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