Morton v. Eastern Regional Jail et al
ROSEBORO NOTICE: re 43 MOTION to Dismiss filed by John Sheeley, Earl Tomblin. Within 21 days from the date of this Order, the pro se party shall file any opposition to the motion. Signed by Magistrate Judge James E. Seibert on 4/22/2014. Copy sent certified mail, return receipt to pro se Plaintiff.(tlg) (Additional attachment(s) added on 4/22/2014: # 1 certified mail receipt) (tlg).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TIRRELL A. MORTON,
Civil Action No. 3:12cv122
GOV. EARL TOMBLIN,
On February 13, 2014, the defendants filed a Motion to Dismiss. Because the plaintiff is
proceeding pro se, the Court has a mandatory duty to advise him of his right to file a response, and to
alert him to the fact that his failure to respond could result in the entry of an order of dismissal against
him. Davis v. Zahradrich, 600 F.2d 458, 460 (4th Cir. 1979); Roseboro v. Garrison, 528 F.2d 309, 310
(4th Cir. 1975).
In ruling on a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept as true
all well-pleaded material factual allegations. Advanced Health-Care Services, Inc. v. Radford
Community Hosp., 910 F.2d 139, 143 (4th Cir. 1990). Moreover, the Federal Rules of Civil Procedure
“require[ ] only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’
in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it
rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S.
41, 47 (1957)). However, although a complaint need not assert “detailed factual allegations,” it must
contain “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555 (citations omitted). To survive dismissal for failure to state a claim,
the complaint must raise a right to relief that is more than speculative. Id. In other words, the complaint
must contain allegations that are “plausible” on their face, rather than merely “conceivable.” Id. at 555,
570. A “claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009).
Therefore, within twenty-one (21) days of the date of this Order, the plaintiff shall file any
opposition he has to the defendants’ motion. The plaintiff’s response shall not exceed 25 pages.
IT IS SO ORDERED.
The Clerk is directed to send a copy of this Order to the pro se plaintiff by certified mail, return
receipt requested, to his last known address as shown on the docket, and to counsel of record by
DATED: April 22, 2014.
/s/ James E. Seibert
JAMES E. SEIBERT
UNITED STATES MAGISTRATE JUDGE
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