Hinton v. Henderson et al

Filing 17

ROSEBORO ORDER re 7 MOTION to Dismiss for Lack of Jurisdiction.(Plaintiff's Response due by 1/6/2011.). Signed by Magistrate Judge Dennis Howell on 12/21/10. (Pro se litigant served by US Mail.)(gpb)

- D L H Hinton v. Henderson et al

D o c . 17

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA C H A R L O T T E DIVISION 3 :1 0 cv 5 0 5 C H A R L E S EVERETTE HINTON, P l a i n t if f , V s. M I C H A E L W. HENDERSON; P E T E R S. GILCHRIST; TERESA B R O A D W A Y ; and ANDREW R U D G E R S , Probation Officer, D efen d a n ts. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) )

ROSEBORO ORDER

T H IS MATTER is before the court on defendant Peter S. Gilchrist's Motion to Dismiss (#7). Plaintiff is proceeding pro se and will be advised of his obligation to respond and the time for doing so. I n accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), p lain tiff, who is proceeding pro se, is cautioned that defendant has filed a Motion to D ism iss contending that this court lacks subject matter jurisdiction over his Complaint an d that he has failed to state a cause of action against such defendant. Plaintiff is advised that Rule 12(b)(1) provides for dismissal where the court la ck s jurisdiction over the subject matter of the lawsuit. Lack of subject-matter ju risd ictio n may be raised at any time either by a litigant or the court. Mansfield, C.
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Dockets.Justia.com

& L.M.R. Co. v. Swan, 111 U.S. 379, 382 (1884). The ability of the court to in d e p e n d e n tly address subject-matter jurisdiction is important to finality inasmuch as a litigant, even one who remains silent on the issue of jurisdiction, may wait until they r ec eiv e an adverse judgment from a district court and raise the issue of subject-matter ju r is d ic tio n for the first time on appeal, thereby voiding the judgment. Capron v. Van N o o rd en , 2 Cranch 126, 127, 2 L.Ed. 229 (1804). The Federal Rules of Civil

P ro ced u re anticipate this issue and provide that "[w]henever it appears by suggestion o f the parties or otherwise that the court lacks jurisdiction of the subject matter, the co u rt shall dismiss the action." Fed.R.Civ.P. 12(h)(3). When a court considers its su b ject-m atter jurisdiction, the burden of proof is on the plaintiff. Adams v. Bain, 697 F .2 d 1213, 1219 (4 th Cir. 1982). In Richmond, Fredricksburg & Potomac R.R. Co. V. U n ited States, 945 F.2d 765 (4 th Cir. 1991) (Ervin, C.J.), the Court of Appeals for the F o u rth Circuit held, as follows In determining whether jurisdiction exists, the district court is to regard th e pleadings' allegations as mere evidence on the issue, and may co n sid er evidence outside the pleadings without converting the p r o c e e d in g to one for summary judgment. Id.; Trentacosta v. Frontier P a cif ic Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir.1987). The district c o u r t should apply the standard applicable to a motion for summary ju d g m en t, under which the nonmoving party must set forth specific facts b eyo n d the pleadings to show that a genuine issue of material fact exists. T ren taco sta, supra, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U .S . 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). The m o v in g party should prevail only if the material jurisdictional facts are n o t in dispute and the moving party is entitled to prevail as a matter of
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la w . Trentacosta, supra, 813 F.2d at 1558. A district court order d ism issin g a case on the grounds that the undisputed facts establish a lack of subject matter jurisdiction is a legal determination subject to de n o v o appellate review. Revene v. Charles County Comm'rs, 882 F.2d 8 7 0 , 872 (4th Cir.1989); Shultz v. Dept. of the Army, 886 F.2d 1157, 1 1 5 9 (9th Cir.1989). I d ., at 768-69. Plaintiff is advised that it is his burden to show the court how it has ju risd ictio n over the subject matter of this action. Defendant has also moved to dismiss under Rule 12(b)(6) for failure to state a c la im . 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 th at in responding to the motion to dismiss, plaintiff must show that he has made su f f ic ien t allegations to support a cause of action against such defendant that is reco g n ized by law. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the

C o u rt held that to survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege f ac ts in his 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 recitatio n of the elements of a cause of action will not do . . . . Id. (second alteration in original; citation omitted). Further, a complaint will not s u r v iv e Rule 12(b)(6) review where it contains "naked assertion[s] devoid of further factu al enhancement." Id., at 557. Instead, a plaintiff must now plead sufficient facts
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to state a claim for relief that is "plausible on its face." Id., at 570 (emphasis ad d ed ).T h e court again visited the Rule 12(b)(6) pleading standard in Ashcroft v. I q b a l, ___ U.S. ___, 129 S.Ct. 1937 (May 18, 2009). In Ashcroft, the Court held that R u le 8 "demands more than an unadorned, the defendant-unlawfully-harmed-me accu satio n ." Id., S.Ct., at 1949. The Court explained that, "to survive a motion to d ism iss, 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 ad d ed ). What is plausible is defined by the Court: [a] claim has facial plausibility when the plaintiff pleads sufficient f ac tu a l content that allows the court to draw the reasonable inference that th e defendant is liable for the misconduct alleged. Id . This "plausibility standard" requires "more than a sheer possibility that a

d efen d an t has acted unlawfully." Id. Thus, a complaint falls short of the plausibility stan d ar d where plaintiff "pleads facts that are `merely consistent with' a defendant's liab ility . . . ." Id. While the court accepts plausible factual allegations made in the C o m p lain t as true and considers those facts in the light most favorable to plaintiff in ru lin g on a motion to dismiss, a court "need not accept as true unwarranted inferences, u n reaso n ab le conclusions, or arguments." Eastern Shore Mkt.'s Inc. v. J.D. Assoc.'s, L L P , 213 F. 3d 175, 180 (4th Cir. 2000). Finally, plaintiff is advised that the method for responding requires his filing

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a written "response" to defendant's motion within the time allowed by this Order. A co p y of such response must be sent to counsel for all other parties, and plaintiff must c er tif y that he 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 his written response to d efen d an t Peter S. Gilchrist's Motion to Dismiss (#7) not later that January 6, 2011.

Signed: December 21, 2010

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