Hopper v. McFadden et al
ORDER denying 41 Pro Se MOTION for Extension of Time to File Response/Reply. IT IS FURTHER ORDERED that Plaintiff has 14 days from this Order to renew his motion for an extension of time to respond to Defendant Friday 9;s 31 Motion to Dismiss and Defendant Walters' 35 Motion for Summary Judgment in accordance with the terms of this Order. ( Specific Document due by 6/5/2023.) Signed by Chief Judge Martin Reidinger on 5/22/2023. (Pro se litigant served by US Mail.) (hms)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
GERALD DAMONE HOPPER,
GARRY L. MCFADDEN, et al.,
THIS MATTER is before the Court Plaintiff’s pending motion. [Doc. 41].
On November 9, 2022, Plaintiff’s Amended Complaint pursuant to 42
U.S.C. § 1983 passed initial review against Defendants Garry L. McFadden,
FNU LeBliss, Destiny Walters, and Roshaunda Friday in accordance with the
Court’s Order. [Docs. 11, 17]. On February 28, 2023, Defendant Friday
answered and moved to dismiss Plaintiff’s Amended Complaint under Rule
12(b)(6) of the Federal Rules of Civil Procedure. [Docs. 30, 31]. The Court
issued a Roseboro Order advising Plaintiff of his duty to respond and giving
him 30 days – until April 5, 2023 – to do so. [Doc. 33]. The Court also
entered its Pretrial Order and Case Management Plan the same day, setting
the discovery deadline as July 7, 2023, and the dispositive motions deadline
Case 3:22-cv-00454-MR Document 43 Filed 05/22/23 Page 1 of 4
as August 3, 2023. [Doc. 34]. On March 13, 2023, Defendant Walters
moved for summary judgment pursuant to Rule 56 of the Federal Rules of
Civil Procedure. [Doc. 35]. On March 20, 2023, the Court issued another
Roseboro Order, advising Plaintiff of his duties in responding to Defendant
Walters’ summary judgment motion and setting the response deadline as
April 10, 2023. [Doc. 38].
On May 10, 2023, the Court received Plaintiff’s purported, undated
response to “Defendants’ Motion to Dismiss.”1 [Doc. 39]. Now pending is
Plaintiff’s untitled motion in which he seeks “an extension of time to respond
to the defendants’ filings to Plaintiff’s Complaint,” which was postmarked
May 9, 2023.
[Doc. 41, 41-1].
Plaintiff also “move[s] the Court for
reconsideration of any adversed [sic] or unfavorable ruling by the Court as a
result of Plaintiff’s failure to timely respond to the defendant’s filings.” [Doc.
41 at 2]. As grounds, Plaintiff states that he underwent “a major surgery to
remove the colostomy bag,” that he was hospitalized thereafter “for a period
time,” that he “has been unstable while convalescing,” and as pro se litigant,
he is “without the means and resources to adequately respond to the
defendant’s filings.” [Id. at 1].
The envelope transmitting this filing was postmarked May 8, 2023. [Doc. 39-1].
Case 3:22-cv-00454-MR Document 43 Filed 05/22/23 Page 2 of 4
The Court will deny Plaintiff’s motion for extension of time without
prejudice. While Plaintiff states that he underwent surgery and was in the
hospital, Plaintiff fails to attest when his surgery occurred, how long he was
in the hospital, and for how long he was “unstable” and presumably unable
to respond to Defendants’ motions. The Court cannot discern from the
information before it whether Plaintiff is acting in good faith, particularly
where the deadlines to respond to Defendant Friday’s Motion to Dismiss and
Defendant Walters’ Motion for Summary Judgment are long expired. Plaintiff
also fails to state the length of extension he seeks or the particular deadlines
he wants extended. Plaintiff may refile his motion for an extension of time
within fourteen (14) days of this Order. If Plaintiff refiles his motion, he must
attest, under penalty of perjury, the date of his surgery and the durations of
his hospital stay and relative incapacitation. If Plaintiff fails to timely renew
his motion in accordance with the terms of this Order, the Court will decide
the aforementioned Motions without consideration of any responses by
Plaintiff’s vague motion to reconsider “adverse rulings” by the Court
will also be denied. The Court cannot and will not reconsider its prior rulings
under these circumstances. Moreover, the Court sees no rulings to date that
flowed from “Plaintiff’s failure to timely respond to the defendant’s filings.”
Case 3:22-cv-00454-MR Document 43 Filed 05/22/23 Page 3 of 4
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion [Doc. 41] is
DENIED without prejudice in accordance with the terms of this Order.
IT IS FURTHER ORDERED that Plaintiff has fourteen (14) days from
this Order to renew his motion for an extension of time to respond to
Defendant Friday’s Motion to Dismiss and Defendant Walters’ Motion for
Summary Judgment in accordance with the terms of this Order.
IT IS SO ORDERED.
Signed: May 22, 2023
Case 3:22-cv-00454-MR Document 43 Filed 05/22/23 Page 4 of 4
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