Stafford v. Murray et al

Filing 38

ORDER ordering Plaintiff to respond to re 35 MOTION to Dismiss for Failure to State a Claim within 14 days of the entry of this Order. Plaintiff's responses due by 9/11/2015. Failure to file a timely response will likely lead to the dismissal of Plaintiff's claims against Defendant. Signed by Chief Judge Frank D. Whitney on 8/25/15. (Pro se litigant served by US Mail.)(smj)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:14-cv-186-FDW
DAMON DEMOND STAFFORD,

)
)
Plaintiff,
)
)
vs.
)
)
FNU MURRAY, et al.,
)
)
Defendants.
)
__________________________________________)

ORDER

THIS MATTER is before the Court sua sponte regarding the filing of a Motion to
Dismiss by Defendant David Guinn. (Doc. No. 35).
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 Plaintiff’s claims against Defendant.
IT IS, THEREFORE, ORDERED that:

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

1.

Plaintiff shall respond to the pending Motion to Dismiss, (Doc. No. 35), within 14
days of entry of this Order. Failure to file a timely response will likely lead to the
dismissal of Plaintiff’s claims against Defendant.

2.

The Clerk of Court is directed to send a copy of this Order to the pro se Plaintiff
by certified U.S. mail.
Signed: August 25, 2015

2