Opinion
Civil Action 9:20-cv-03964-DCC-MHC
09-08-2021
Darren L. Cranford, Plaintiff, v. Kilolo Kijakazi, [1] Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
Molly H. Cherry, United States Magistrate Judge
Plaintiff, proceeding pro se and in forma pauperis, brought this action appealing a denial of social security benefits. Before the Court is Defendant's Motion to Dismiss for Failure to Prosecute, ECF No. 32. Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 73.02(B)(2) (D.S.C.), this matter has been referred to the undersigned United States Magistrate Judge for pretrial management and for proposed findings of fact and recommendations. For the reasons that follow, the undersigned recommends that Defendant's Motion to Dismiss be granted.
BACKGROUND
On November 12, 2020, Plaintiff filed the Complaint in this action. ECF No. 1. Plaintiff brought the case in proper form in March 2021, and the undersigned authorized service of process on March 31, 2021. ECF Nos. 10 & 13.
On May 10, 2021, Defendant filed the record and answer, ECF No. 22, which started the running of the 30-day deadline for Plaintiff's brief in support of his claim that Social Security benefits were improperly denied. Plaintiff did not file his brief by the deadline. Because Plaintiff is proceeding pro se, the undersigned issued an Order on June 15, 2021, extending the period for Plaintiff to file his brief to July 15, 2021. ECF Nos. 28 & 30. Plaintiff again did not file his brief or communicate with the Court in any way.
On July 22, 2021, Defendant filed a Motion to Dismiss, seeking dismissal of this action pursuant to Rule 41(b) of the Federal Rules of Civil Procedure for failure to prosecute. ECF No. 32. Because Plaintiff is not represented by counsel, the Court issued an Order on July 29, 2021, to advise Plaintiff of the possible consequences if Plaintiff failed to respond adequately to Defendant's Motion. ECF Nos. 33 & 34. That Order again extended Plaintiff's deadline to file a written brief in support of his claim that Social Security benefits were properly denied, setting a new deadline of August 30, 2021. ECF No. 33. The Order specifically advised Plaintiff that if he failed to file a properly supported response, Defendant's Motion may be granted, thereby ending his case. Id. Notwithstanding the specific warning and instructions set forth in the Court's July 29 Order, as well as two extensions of the briefing deadline, Plaintiff has failed to file a brief, respond to the Motion to Dismiss, or contact the Court in any way.
DISCUSSION
Federal courts have the inherent power to dismiss an action, either sua sponte or on a party's motion, for failure to prosecute. See Link v. Wabash R.R. Co., 370 U.S. 626, 629-32 (1962); Fed.R.Civ.P. 41(b) (“If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.”). “The power to invoke this sanction is necessary in order to prevent undue delays in the disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Link, 370 U.S. at 629-30. In considering whether to impose such a dismissal, the Court should consider “(1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of ‘a drawn out history of deliberately proceeding in a dilatory fashion,' and (4) the existence of a sanction less drastic than dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (per curiam) (quoting Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); see Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff's claims and noting that pro se litigants, like other litigants, “are subject to the time requirements and respect for court orders without which effective judicial administration would be impossible”).
The undersigned finds that all four factors under Lopez weigh in favor of dismissal. See Lopez, 669 F.2d at 920. First, because Plaintiff is proceeding pro se, he is personally and solely responsible for proceeding in a dilatory fashion and failing to comply with the Court's July 29 Order.
Second, Defendant has expended time and resources assembling the transcript and answering the Complaint in this action, which Plaintiff now appears to abandon. Moreover, Defendant asserts that she has been prejudiced by the “inability to litigate the matter at all.” ECF No. 32 at 2 (quoting Huntington v. Colvin, No. DKC 15-83, 2015 WL 5474272, at *2 (D. Md. Sept. 15, 2015)). Plaintiff's form complaint does not identify any specific errors in the decision below, and, because Plaintiff has not filed his brief, Defendant has no way of identifying or addressing the issues in this case. See Huntington, 2015 WL 5474272, at *2 (“[A]s Plaintiff appears to have abandoned [his] claim, [his] failure to prosecute has rendered Defendant unable to address the merits of [his] claim.”).
As to the third factor, despite receiving month-long extensions of time to file his written brief, Plaintiff has failed to do so, thus demonstrating a history of proceeding in a dilatory fashion. See Id. (finding that “the Court should expect only further delay should the case proceed”). Fourth, and finally, no sanctions other than dismissal likely would be effective given Plaintiff's lack of compliance or any sort of response to Court filings despite a Court order requiring him to do so. See id.; see also Lacey v. Colvin, No. TMD 14-1837, 2015 WL 5602878, at *2 (D. Md. Sept. 22, 2015) (dismissing pro se social security complaint for failure to prosecute). Accordingly, because Plaintiff has failed to comply with the Court's July 29 Order and file his initial brief or otherwise respond to the Motion to Dismiss, after being warned that such failure could result in dismissal, the undersigned recommends that the instant action be dismissed without prejudice pursuant to Rule 41(b).
RECOMMENDATION
It is RECOMMENDED that Defendant's Motion to Dismiss be GRANTED, and this action be DISMISSED, without prejudice, for lack of prosecution. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Rule 41(b), Fed. R. Civ. P.; see also Lacey, 2015 WL 5602878, at *2; (recommending dismissal without prejudice of social security appeal); Huntington, 2015 WL 5474272, at *2 (recommending dismissal of social security appeal for failure to prosecute and to comply with the Court's scheduling order); Coker v. Int'l Paper Co., No. 08-1865, 2010 WL 1072643, at *2 (D.S.C. Mar. 18, 2010) (noting that a plaintiff can abandon claims by failing to address them in response to a dispositive motion).
The Clerk shall mail this Report and Recommendation to Plaintiff at his last known address. If the Plaintiff notifies the Court within the time set forth for filing objections to this Report and Recommendation that he wants to continue with this case and provides a written brief in support of his claim for social security benefits, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling.
If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard, 882 F.2d at 95 (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from plaintiff failing to obey his order was proper grounds for the district court to dismiss suit when plaintiff did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the complaint based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
It is so RECOMMENDED.
The parties are referred to the Notice Page attached hereto.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."' Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).