Ballard v. NC Dept. of Public Safety et al

Filing 34

ORDER directing plf to respond within 14 days re 31 MOTION to Dismiss for Failure to State a Claim , Set/Reset Deadlines as to 31 MOTION to Dismiss for Failure to State a Claim .(Responses due by 9/15/2014). Signed by Chief Judge Frank D. Whitney on 8/29/2014. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:13-cv-175-FDW
ROBERT S. BALLARD,

)
)
Plaintiff,
)
)
vs.
)
)
NC DEPARTMENT OF
)
PUBLIC SAFETY,
)
MARTA M. KALINSKI, Doctor,
)
PAULA SMITH, Doctor, Director of
)
Health Services,
)
)
Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on its own motion following the filing of a Motion
to Dismiss by Defendant Kalinski, (Doc. No. 31), on August 28, 2014.
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court advises
Plaintiff, who is proceeding pro se, that he has a right to respond to Defendant’s motion.1 The
Court also advises Plaintiff that failure to respond may result in Defendant being granted the
relief Defendant seeks—that is, the dismissal of the Complaint.
1

The Fourth Circuit did not hold in Roseboro that such notice is required for motions to dismiss.
Rather, the Fourth Circuit’s discussion in Roseboro regarding notice was directed to summary
judgment motions. See Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (“We agree
with the plaintiff, however, that there is another side to the coin which requires that the plaintiff
be advised of his right to file counter-affidavits or other responsive material and alerted to the
fact that his failure to so respond might result in the entry of summary judgment against him.”);
see also Norman v. Taylor, 25 F.3d 1259, 1261 (4th Cir. 1994) (“In Roseboro v. Garrison, 528
F.2d 309 (4th Cir. 1975), this circuit held that pro se plaintiffs must be advised that their failure
to file responsive material when a defendant moves for summary judgment may well result in
entry of summary judgment against them.”). Nevertheless, courts routinely issue Roseboro
notices for motions to dismiss, and the Court does so here.
1

IT IS, THEREFORE, ORDERED that:
1.

Plaintiff shall respond to the pending Motion to Dismiss, (Doc. No. 31), within 14
days of service of this Order. Failure to file a timely response will likely lead to
the dismissal of this lawsuit.

Signed: August 29, 2014

2