Cooper v. Johnson et al

Filing 25

ROSEBORO ORDER re 24 MOTION to Dismiss Amended Complaint. Plaintiff is to file her written response to Defendants Motion to Dismiss 24 not later than June 17, 2011. Signed by Magistrate Judge Dennis Howell on 6/6/2011. (Pro se litigant served by US Mail.)(thh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:11cv102
THALIA D. COOPER,

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Plaintiff,
v.
LISA JOHNSON, et al.
Defendants.
_______________________________

ROSEBORO
ORDER

Pending before the Court is the Motion to Dismiss [# 24] filed by Defendant
Transylvania County and Dotti Harris. Plaintiff is proceeding pro se and will be
advised of her obligation to respond and the time for doing so.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),
Plaintiff, who is proceeding pro se, is cautioned that Defendants have filed a Motion
to Dismiss contending that the Amended Complaint fails to state claim against
Defendants Transylvania County and Dotti Harris, including that her claims are barred
by applicable statute of limitations.
Rule 12(b)(6), Federal Rules of Civil Procedure, provides for dismissal where
a party has failed to state a cause of action as a matter of law. This language means
that in responding to the motion to dismiss, Plaintiff must show that she has made
sufficient allegations to support a cause of action against such defendant that is
recognized by law.

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the

Court held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege

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facts in her complaint that “raise a right to relief above the speculative level.” Id., at
555.
[A] plaintiff’s obligation to provide the “grounds” of his “entitle[ment]
to relief” requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . . .
Id. (second alteration in original; citation omitted). Further, a complaint will not
survive Rule 12(b)(6) review where it contains “naked assertion[s] devoid of further
factual enhancement.” Id., at 557. Instead, a plaintiff must now plead sufficient facts
to state a claim for relief that is “plausible on its face.” Id., at 570 (emphasis added).
The Court again visited the Rule 12(b)(6) pleading standard in Ashcroft v. Iqbal, ___
U.S. ___, 129 S.Ct. 1937 (May 18, 2009). In Ashcroft, the Court held that Rule 8
“demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”
Id., S.Ct., at 1949. The Court explained that, “to survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’” Id. (citing Twombly, supra; emphasis added).
What is plausible is defined by the Court:
[a] claim has facial plausibility when the plaintiff pleads sufficient
factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.
Id.

This “plausibility standard” requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. Thus, a complaint falls short of the plausibility
standard where plaintiff “pleads facts that are ‘merely consistent with’ a defendant’s
liability . . . .” Id. While the court accepts plausible factual allegations made in the
Complaint as true and considers those facts in the light most favorable to plaintiff in

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ruling on a motion to dismiss, a court "need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s,
LLP, 213 F. 3d 175, 180 (4th Cir. 2000).
Finally, Plaintiff is advised that the method for responding requires her filing
a written “response” to Defendants’ motion within the time allowed by this Order. A
copy of such response must be sent to counsel for all other parties, and Plaintiff must
certify that she has made such service in a “certificate of service” indicating the
manner in which such service was made.

ORDER
IT IS, THEREFORE, ORDERED that Plaintiff file her written response to
Defendants’ Motions to Dismiss [# 24] not later than June 17, 2011.

Signed: June 6, 2011

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