Murphy v. Cleveland County, et al

Filing 43

ORDER that Pltf shall file a document informing the Court, within 20 days, whether he seeks to conduct discovery before the Court rules on Deft's pending 35 MOTION for Summary Judgment , ( Pltf's Document/Response due by 12/7/2021 ). Signed by District Judge Max O. Cogburn, Jr. on 11/17/2021. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:21-cv-5-MOC-DSC
DANTE MURPHY,

)
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Plaintiff, pro se,
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)
vs.
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CLEVELAND COUNTY, et al.,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court on a Motion for Summary Judgment, filed by
Defendant Cleveland County. (Doc. 35).
I.

BACKGROUND

In the underlying action, pro se Plaintiff Dante Murphy has sued Defendant Cleveland
County, alleging various claims of employment discrimination. On March 31, 2021, Defendant
filed a Motion to Dismiss Plaintiff’s Complaint (Doc. 11) and Memorandum of Law in Support
thereof.1 (Doc. 12). On August 2, 2021, this Court held oral arguments on the motion to dismiss,
which the Court granted in part and denied in part on August 26, 2021. (Doc. 28). After
receiving an extension of time to Answer or otherwise respond, Defendant filed the pending
summary judgment motion on September 23, 2021. (Doc. 35).

1

All other Defendants were dismissed from this lawsuit on August 26, 2021, including
Cleveland County Department of Social Services, Cleveland County Board of Commissioners,
Doug Bridges (Individual and Official Capacity) and Katie Swanson (Individual and Official
Capacity). Cleveland County is the only remaining Defendant. See (Doc. 28).
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II.

DISCUSSION

The Court notes that Defendant filed the summary judgment motion before the parties
conducted any discovery in this action. Although Rule 56(b) of the Federal Rules of Civil
Procedure states that a summary judgment motion may be filed at any time until 30 days after the
close of all discovery, the plaintiff also has the right, under Rule 56(d), to ask the Court to
continue the pending summary judgment motion and to grant Plaintiff leave to conduct
discovery.
Plaintiff has the right to conduct discovery if he chooses to do so. Because he is
proceeding pro se, he may not be aware that he has the right to conduct discovery. The Court
will, therefore, give Plaintiff twenty days in which to inform the Court whether he would like to
conduct discovery in this matter before the Court rules on Defendant’s pending summary
judgment motion.2
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff shall file a document informing the Court, within 20 days, whether he
seeks to conduct discovery before the Court rules on Defendant’s pending
summary judgment motion.

2

The Court understands that Defendant contends that Plaintiff abandoned his claims by not
substantively responding to the summary judgment motion. Defendant also argues that discovery
would be a waste of time, as no amount of discovery can support Plaintiff’s remaining retaliation
claim. Given that Plaintiff is proceeding pro se, the Court declines to deprive him of the right to
conduct discovery if he so wishes. Summary judgment motions are routinely denied as premature
where the parties have not conducted discovery. It’s entirely appropriate in this case to at least
allow the pro se Plaintiff the ability to conduct discovery before the Court rules on the summary
judgment motion if he so wishes.
2

Signed: November 17, 2021

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