McMillian v. Cousins, et al

Filing 48

ORDER granting 36 MOTION to Deem Motion to Dismiss Timely Filed; granting 40 Motion to Dismiss for Failure to State a Claim and denying 46 Motion to Strike - Signed by District Judge Louise Wood Flanagan on 07/15/2014. (Baker, C.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
NO. 5:13-CV-814-FL

ERIC M. McMILLIAN,
Plaintiff,
v.
PAUL COUSINS, DR. HUNT, and N.C.
STATE UNIVERSITY,
Defendants.

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ORDER

Where order was entered March 11, 2014, allowing defendants up to and until March 24,
2014, within which to answer or otherwise respond to complaint, and no response had been made,
the court ORDERED defendants March 28, 2014, to show cause for their failure to comply. It was
noted that unless good cause was found for failure to respond, plaintiff may be directed to
memorialize application for judgment.
On April 10, 2014, defendants made responsive showing, which refers to confusion and
misunderstanding of counsel, as therein reported. (DE 36). Good cause having been shown, the
court deems defendants’ motion to dismiss and memorandum in support of defendants’ motion to
dismiss (DE 40, 39), also filed April 10, 2014, timely. In this respect that response (DE 36), which
the clerk notes remains pending, is ALLOWED.
Plaintiff’s response to the instant motion has been lodged on the docket also as a motion.
(DE 46). In that cursory motion to strike defendants’ motion to dismiss, plaintiff’s brief reference
to the merits of the motion under Rule 12 refers only to a lack of any material issue: “Defendants

have raised absolutely no material issue by which this case should be dismissed...”
The court has carefully reviewed the grounds on which defendants assert this action should
be dismissed, pursuant to Rule 12 of the Federal Rules of Civil Procedure, and plaintiff’s response.
Notwithstanding his objection, the grounds offered in furtherance of dismissal of the action against
the individual defendants, Paul Cousins and Dr. Hunt, are well-considered. For reasons given by
defendants, plaintiff’s action must be and is dismissed. Plaintiff has failed to state a claim upon
which relief can be granted.
To the extent that plaintiff purports to bring this action against N.C. State University, plaintiff
has failed to effect proper service on this defendant. Under the circumstances presented, this basis
for dismissal, as argued by defendants, warrants that the action be dismissed also against N.C. State
University. The clerk is directed to close the file.
SO ORDERED, this the 15th day of July, 2014.

_____________________________
LOUISE W. FLANAGAN
United States District Judge

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