Thomas v. State of NC et al

Filing 32

ORDER denying 7 Motion to Dismiss ; denying 11 Motion to Dismiss for Failure to State a Claim; FURTHER ORDERED that Plaintiff shall file her amended complaint within thirty (30) days of this Order. Signed by Magistrate Judge David S. Cayer on 9/3/2015. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:15-CV-00120-RJC-DSC
SHARON THOMAS,
Plaintiff,
v.
STATE OF NORTH CAROLINA, et al.,
Defendants.

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ORDER

THIS MATTER is before the Court on the “Motion to Dismiss by Defendants Orange
County Government, Orange County Department of Social Services, Dustin Lowell and Denise
Shaffer” Doc. 7, the “Motion to Dismiss by Defendants Vanguard Professional Staffing and Susan
Boyette,” Doc. 11, and the parties’ associated briefs and exhibits. See Docs. 8, 12, 18-21, 23-27.
These Motions have been referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. §636(b)(1), and are now ripe for the Court’s consideration. The Court has carefully
examined the record, the parties’ arguments, and the applicable authorities. For the following
reasons, the Court will allow Plaintiff to file an amended complaint in this Court.
I.

FACTUAL AND PROCEDURAL BACKGROUND

On January 29, 2015, pro se Plaintiff Sharon Thomas filed her initial Complaint in
Mecklenburg County Superior Court.

On February 27, 2015, Plaintiff filed an Amended

Complaint in Mecklenburg County Superior Court, which was delivered to Defendant Vanguard
by certified mail on March 6, 2015 and later delivered to Defendant Boyette. See Doc. 23 at 1.

On March 11, 2015, Defendants Orange County Government, Orange County Department
of Social Services, Duston Lowell, and Denise Shaffer (the “Orange County Defendants”) timely
removed Plaintiff’s initial Complaint to this Court.1

On March 18, 2015, the Orange County

Defendants filed a Motion to Dismiss Plaintiff’s initial Complaint pursuant to Rules 12(b)(1) and
(b)(6) of the Federal Rules of Civil Procedure. On March 27, 2015, Defendants Vanguard and
Boyette timely responded to Plaintiff’s Amended Complaint by filing a Motion to Dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.
On June 17, 2015, this Court ordered Defendants to file supplemental briefs addressing
which of Plaintiff’s Complaints was properly before the Court. See Doc. 22. On July 1, 2015,
Defendants Vanguard and Boyette filed their supplemental brief stating that “Plaintiff filed an
Amended Complaint, which was delivered to Vanguard by certified mail on March 6, 2015 and
later also delivered to Boyette.” Doc. 23 at 1. They attached Plaintiff’s Amended Complaint as
an exhibit to their brief. See id. They requested that the Court grant their Motion to Dismiss
Plaintiff’s Amended Complaint. Id. at 2. On July 2, 2015, the Orange County Defendants filed
their supplemental brief stating that they “have not been properly served with a copy of Plaintiff’s
Amended Complaint.” Doc. 24 at 2. They requested that “the Court direct Plaintiff to file her
Amended Complaint with this Court so that this may be properly served on the Orange County
Defendants.” Id. at 3.
The Court is mindful of the latitude extended to the pleadings of pro se litigants. See
Haines v. Kerner, 404 U.S. 519, 520 (1972) (courts should “[c]onstru[e] [a pro se] petitioner’s
inartful pleading liberally”). However, courts cannot act as the pro se plaintiff’s advocate or
develop claims which the plaintiff failed to raise clearly on the face of her complaint. Gordon v.

1

Plaintiff acknowledged that Defendants were served on February 9, 2015. See Doc. 26 at 2. Consequently,
Defendants removal on March 11, 2015 was timely.

Leeke, 574 F.2d 1147, 1152 (4th Cir. 1978) (recognizing that district courts are not expected to
assume the role of advocate for the pro se plaintiff). See also Brock v. Carroll, 107 F.3d 241, 243
(4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th
Cir. 1985). The outright dismissal of pro se complaints is not favored where the defects may be
cured by amendment. McLean v. United States, 566 F.3d 391, 400 (4th Cir.2009). Accordingly,
the Court will allow Plaintiff to file an amended complaint within thirty (30) days of the filing date
of this Order.
The Court warns Plaintiff that her failure to comply with the Court’s Orders, including the
Local Rules and the Federal Rules of Civil Procedure, may result in DISMISSAL OF HER
CLAIMS WITH PREJUDICE.
It is well settled that an amended pleading supersedes the original pleading, and that
motions directed at superseded pleadings are to be denied as moot. Young v. City of Mount Ranier,
238 F. 3d 567, 573 (4th Cir. 2001) (amended pleading renders original pleading of no effect);
Turner v. Kight, 192 F. Supp. 2d 391, 397 (D. Md. 2002) (denying as moot motion to dismiss
original complaint on grounds that amended complaint superseded original complaint).
Consequently, the Court finds that Defendants’ Motions to Dismiss are moot.
IT IS HEREBY ORDERED that
1.

Plaintiff shall file her amended complaint within thirty (30) days of this Order.

2.

The “Motion to Dismiss by Defendants Orange County Government, Orange

County Department of Social Services, Dustin Lowell and Denise Shaffer” Doc. 7, and “Motion
to Dismiss by Defendants Vanguard Professional Staffing and Susan Boyette,” Doc. 11, are
administratively DENIED as moot without prejudice.

3.

The Clerk is directed to send copies of this Order to the pro se Plaintiff; to defense

counsel; and to the Honorable Robert J. Conrad, Jr..
SO ORDERED.

Signed: September 3, 2015