Tolbert v. Stevenson et al

Filing 54

ORDER as to 52 MOTION to Dismiss for Failure to State a Claim . (Responses due by 5/7/2012). Signed by Senior Judge Graham Mullen on 4/5/2012. (Pro se litigant served by US Mail.) (tmg)

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:09-cv-382-GCM ERIC LAMAR TOLBERT, Plaintiff, v. (FNU) STEVENSON, et al., Defendants. ) ) ) ) ) ) ) ) ) ) ORDER THIS MATTER is before the Court on Respondent’s Motion To Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. No. 52). In accordance with Roseboro v.Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises Petitioner, who is proceeding pro se, of his obligation to respond to Respondent’s Motion. When a motion to dismiss is filed simultaneously with an answer, the motion should be construed as one for a judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Walker v. Kelly, 589 F.3d 127, 139 (4th Cir. 2009).1 A motion for a judgment on the pleadings is decided using the same standard as a motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Rule 12(b)(6). Id. at 139. In responding to a motion for judgment on the pleadings, Petitioner must show that his allegations are sufficient to support a cause of action which is recognized by law. Petitioner’s “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombley, 550 U.S. 544, 555 (2007). In considering Petitioner’s Complaint, the court “‘need not accept [his] 1 Rule 12(c) of the Federal Rules of Civil Procedure provides that “after the pleadings are closed–but early enough not to delay trial–a party move for a judgment on the pleadings.” 1 legal conclusions drawn from the facts,’ nor need it “‘accept as true unwarranted inferences, unreasonable conclusions, or arguments.’” Philips v. Pitt County Memorial Hospital, 572 F.3d 176, 179-80 (4th Cir.2009) (quoting Kloth v. Microsoft Corp., 444 F.3d 312, 319 (4th Cir. 2006). Petitioner is further advised that the Court may take judicial notice of matters of public record, and may consider documents attached to his Complaint as well as those attached to the de facto motion for judgment on the pleadings, so long as those documents “are integral to the complaint and authentic.” Philips, supra, at 180 (citing Blankenship v. Manchin. 471 F.3d 523, 526 n.1 (4th Cir. 2006). Petitioner is advised, however, that if he chooses to file documents, affidavits, or declarations in opposition to Respondent’s motion for judgment on the pleadings, such action may result in the conversion of the motion for judgment on the pleadings to a motion for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(d). IT IS, THEREFORE, ORDERED that Petitioner shall have thirty (30) days from the entry of this Order to file his response to the motion for judgment on the pleadings (Doc. No. 52). Petitioner’s failure to respond may result in granting a judgment on the pleadings for Respondent, that is, in the dismissal of the Motion to Vacate with prejudice. The Clerk of Court is directed to send copies of this Order and Notice to the parties. Signed: April 5, 2012 2

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