McGee v. Hicks et al

Filing 29

ORDER granting 21 and 23 Motions to Dismiss. The Complaint [DE-8] is DISMISSED WITH PREJUDICE. The Clerk of Court is DIRECTED to close this case. Signed by Senior Judge James C. Fox on 10/28/2015. Sent to Ursula McGee, 408 Westcliffe, Raleigh, NC 27603 via US Mail on 10/28/2015. (Grady, B.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:15-CV-178-F
URSULA MCGEE,
Plaintiff,
v.
TOMICKA HICKS, SHARON STANLEY,
PATRICIA TAYLOR, and JUDY MCARN,
in their official and individual capacities,
Defendants.

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ORDER

This matter is before the court on Motions to Dismiss filed by Defendant Tomiko Hicks
[DE-21], and by Defendants Sharon Stanley, Patricia Taylor, and Judy McArn [DE-23]. For the
reasons stated herein, the motions are ALLOWED.
I.

FACTUAL AND PROCEDURAL HISTORY

On June 5, 2015, United States Magistrate Judge Robert B. Jones, Jr., allowed the
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plaintiff's motion to proceed in forma pauperis, see Order [DE-7]. Tthe plaintiff's Complaint
[DE-8] was filed the same day. Generally, the plaintiff's Complaint alleges violations of the
plaintiff's civil rights for failing to disburse child support payments. See id at 5. The plaintiff
sought retroactive payments of the allegedly owed payments. See id
On August 5, 2015, the defendants filed the present motions to dismiss. The same day,
the clerk of court sent the plaintiff letters, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), advising her that failure to respond to the motions to dismiss could result in the court

granting the motions and dismissal of her case. See Letter of August 5, 2015 to Ursula McGee
[DE-25].
Several weeks later, on August 31, 2015, the plaintiff filed a Motion for Continuance
[DE-26], in which she essentially acknowledged improper service on the defendants and
requested an extension of thirty days in which to serve process. See id. at 1. The court dismissed
the plaintiffs motion as moot as she still had until October 3, 2015, to effectuate proper service.
See Order of September 8, 2015 [DE-27] at 1. The court further informed the plaintiff that it

would allow her until October 28, 2015, to respond to the pending motions to dismiss. See id.
That time has now passed and the plaintiff has not (1) provided proof that she has served process
on the defendants, or (2) responded to the pending motions to dismiss.

II.

DISCUSSION
Despite the court's allowance of an extension of time to serve process and to respond to

the present motions, the plaintiff has not provided proof of proper service of the defendants nor
responded to the defendants' motions to dismiss. Accordingly, the motions to dismiss are
uncontested. Those motions, at a minimum, show that the plaintiff has failed to properly serve
the defendants, which the plaintiff acknowledged in her Motion for Continuance [DE-26]. For
that reason, as well as the other reasons stated in the memoranda in support, the Motions to
Dismiss [DE-21, -23] are ALLOWED. Furthermore, the court finds that any amendment to the
Complaint would be futile. Therefore, dismissal with prejudice is warranted. See MCLean v.
United States, 566 F.3d 391, 400 (4th Cir. 2009).

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