Martin v. Murray et al

Filing 33

ORDER that Plaintiff shall respond to Defendant Ruppe's 30 MOTION to Dismiss Plaintiff's Complaint and Amended Complaint within 14 days of entry of this Order. Signed by Chief Judge Frank D. Whitney on 8/14/2018. (Pro se litigant served by US Mail.)(kby)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:17-cv-329-FDW
MITCHELL JOSEPH MARTIN,

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Plaintiff,
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vs.
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CHAD MURRAY, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court sua sponte regarding the filing of Defendant Ruppe’s
Motion to Dismiss Plaintiff’s Complaint and Amended Complaint, (Doc. No. 30).
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises
Plaintiff, who is proceeding pro se, that he has a right to respond to Defendant Ruppe’s Motion.1
The Court also advises Plaintiff that failure to respond may result in Defendant Rupee being
granted the relief Defendant seeks.
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff shall respond to Defendant Ruppe’s Motion to Dismiss Plaintiff’s
Complaint and Amended Complaint, (Doc. No. 30), within 14 days of entry of this
Order. Failure to file a timely response will likely lead to the granting of relief

1

The Fourth Circuit did not hold in Roseboro that such notice is required for motions to dismiss. Rather,
the Fourth Circuit’s discussion in Roseboro regarding notice was directed to summary judgment motions. See
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (“We agree with the plaintiff, however, that there is another
side to the coin which requires that the plaintiff be advised of his right to file counter-affidavits or other responsive
material and alerted to the fact that his failure to so respond might result in the entry of summary judgment against
him.”); see also Norman v. Taylor, 25 F.3d 1259, 1261 (4th Cir. 1994) (“In Roseboro v. Garrison, 528 F.2d 309 (4th
Cir. 1975), this circuit held that pro se plaintiffs must be advised that their failure to file responsive material when a
defendant moves for summary judgment may well result in entry of summary judgment against them.”). Nevertheless,
courts routinely issue Roseboro notices for motions to dismiss, and the Court does so here.

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Defendant Ruppe seeks.
2.

The Clerk of Court is directed to send a copy of this Order to the pro se Plaintiff by
certified U.S. mail.

Signed: August 14, 2018

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