Morton v. Eastern Regional Jail et al

Filing 47

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).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF WEST VIRGINIA TIRRELL A. MORTON, Plaintiff, v. Civil Action No. 3:12cv122 (Judge Groh) JOHN SHEELEY, GOV. EARL TOMBLIN, Defendants. ROSEBORO NOTICE 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 electronic means. DATED: April 22, 2014. /s/ James E. Seibert JAMES E. SEIBERT UNITED STATES MAGISTRATE JUDGE

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