Travis v. USA

Filing 9

ORDER that petitioner shall respond to the pending re 7 MOTION to Dismiss and Response to Petitioner's Motion to Vacate no later than 14 days from entry of this Order. Failure to file a timely and persuasive response will likely lead to dismissal of this action. Signed by District Judge Richard Voorhees on 2/12/15. (Pro se litigant served by US Mail.)(smj)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14CV39-RLV
(5:09CR25-RLV-4)

KENNETH LEE TRAVIS,

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Petitioner,
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vs.
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UNITED STATES OF AMERICA,
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Respondent. )
____________________________________ )

ORDER

THIS MATTER is before the Court on its own motion following the filing of
Respondent’s Motion to Dismiss on January 30, 2015, (Doc. No. 7). The Court notifies
Petitioner that, in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Petitioner
has a right to respond to Respondent’s motion to dismiss.1 The Court also advises Petitioner that
failure to respond may result in dismissal of the petition.
IT IS, THEREFORE, ORDERED that:
1.

Petitioner shall respond to the pending Motion to Dismiss, (Doc. No. 7), no later

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.
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than fourteen (14) days from entry of this Order. Failure to file a timely and
persuasive response will likely lead to the dismissal of this action.

Signed: February 12, 2015

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