Martin v. Bobbitt et al

Filing 27

ORDER directing the Plaintiff to file any response in opposition to the Defendants' 26 MOTION to Dismiss within fourteen (14) days of the date of this Order. The Clerk is hereby instructed to attach a copy of Fed.R.Civ.P. 41 and 12 to the copy of the Order that is served on the Plaintiff. Signed by Magistrate Judge R. Stan Baker on 11/29/2016. (ca)

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

KENDRICK R. MARTIN,
Plaintiff,

CIVIL ACTION NO.: 6:16-cv-117

v.
T. BOBBITT, Deputy Warden of Security;
CAPTAIN S. JACKSON; FREDDIE DAVIS,
CERT Sergeant; FNU CLEMENTE, CERT;
FNU GOETIE, CERT; M. ANDERSON,
Major of Security; FNU ALLEN, CERT; FNU
WATKINS, CERT; and FNU ZIMMIMAN,
CERT,
Defendants.

ORDER
This matter is before the Court on Defendants’ Motion to Dismiss filed on November 22,
2016. (Doc. 26.) 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, the Court hereby 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 fourteen (14) 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 to 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 Court hereby instructs the Clerk

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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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of Court 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 29th day of November, 2016.

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

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