United States District Court, D. South Carolina
Mr. Jerome Fredrick Toney, Petitioner,
William L. Davis, Jr., Program Manager, Not Guilty By Reason of Insanity Outreach Clinic; State of South Carolina, Respondent.
J. GOSSETT, UNITED STATES MAGISTRATE JUDGE.
an action seeking habeas corpus relief under 28 U.S.C. §
2254. Petitioner is confined to a state institution based on
an order of civil commitment. Under Local Civil Rule
73.02(B)(2)(c) (D.S.C.), pretrial proceedings in this action
have been referred to the assigned United States Magistrate
respondent originally filed a response to the habeas petition
on June 14, 2016, moving to dismiss the petition for failure
to state a claim on which relief can be granted. (ECF No.
31.) The court issued an order pursuant to Roseboro v.
Garrison, 528 F.2d 309 (4th Cir. 1975), providing the
petitioner with an explanation of the dismissal procedures in
federal habeas corpus cases. (ECF No. 33.) The petitioner
filed a response in opposition to the motion to dismiss and a
supplement. (ECF Nos. 36 & 39.)
respondent has now filed an amended motion to dismiss in
response to the court's September 13, 2016 Order
directing the respondent's to clarify which parties he
represents in this case. (ECF No. 42.)
the court will consider the petitioner's response in
opposition to the motion to dismiss and supplement when it
considers the respondent's amended motion to dismiss, the
court will also allow the petitioner fourteen (14) days from
the date of this order to file a response to the amended
motion to dismiss with any material that the petitioner feels
is appropriate to oppose the respondent's motion, if he
of Motions to Dismiss
to dismiss can be filed pursuant to Fed.R.Civ.P. 12. Many
motions to dismiss are filed under Fed.R.Civ.P. 12(b)(6), in
which the respondent usually argues that the law does not
provide a right to relief for claims that a petitioner makes
in his case. Because motions to dismiss usually concern
questions of law and not questions of fact, the court
presumes as true the plausible facts of the petition for the
purpose of a motion to dismiss.
court decides a motion to dismiss on the basis of the
applicable law and pleadings, meaning the petition,
respondent's answer (if any), the exhibits attached to
the petition, documents that the petition incorporates by
reference (provided they are both undisputed and pertinent to
the pleaded claims), and materials of which the court may
take judicial notice. In some cases, the parties present
materials outside of the pleadings, such as affidavits or
declarations in support of or in opposition to the motion to
dismiss. If the court, in its discretion, considers materials
outside of the pleadings, the motion to dismiss is converted
to a motion for summary judgment under Fed.R.Civ.P. 56.
See Fed.R.Civ.P. 56(d).
Response to the Respondent's Motion/Return
filing in opposition to the respondent's motion and/or
return should be captioned either as “Response to
Motion to Dismiss” and should include the following:
(1) an explanation of your version of the facts, if different
from respondent's version of the facts; and (2) your
legal argument regarding why the court should not grant the
motion and end your case. Rule 56(c) requires that you
support your version of all disputed facts with material such
as depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those
made for purposes of the motion only), admissions,
interrogatory answers, or other materials. Your failure to
support facts in dispute with such material may result in the
court granting the motion. Any affidavits or declarations you
file in opposition to summary judgment must be based on
personal knowledge, contain facts admissible in evidence, and
be signed by a person who would be competent to testify on
matters contained in the affidavit or declaration if called
to testify about them at trial. The court will not consider
affidavits, declarations, or exhibits that are unrelated to
this case or affidavits or declarations that contain only
conclusory statements or argument of facts or law. If you
fail to dispute the respondent's version of the facts
with proper support of your own version, the court may
consider the respondent's facts as undisputed.
affidavits, declarations, or other evidence you submit to the
court must be made in good faith and the facts sworn to in
the affidavit or affirmed in the declaration must be true.
All affidavits and declarations submitted in this case are
submitted under penalties of perjury or subornation of
perjury. 18 U.S.C. §§ 1621 and 1622. If the court
finds that a party has presented affidavits, declarations, or
other evidence in bad faith or only to delay the action, the
court may order sanctions, payment of fees, or hold that
party in contempt of court.
IS SO ORDERED.
OF FEDERAL RULES OF CIVIL PROCEDURE Rule 12 and Rule 56
(effective December 1, 2010)
12. Defenses and Objections: When and How Presented; Motion
for Judgment on the Pleadings; Consolidating Motions, Waiving
Defenses; Pretrial Hearing
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