Opinion
18-CV-01936 (VEC)(SN)
06-05-2019
ALISHA NEAL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE VALERIE E. CAPRONI:
On March 1, 2018, Plaintiff Alisha Neal, proceeding pro se, filed this appeal from an unfavorable determination of the Social Security Administration regarding her eligibility for disability benefits. Since then, Plaintiff has not taken any further action to prosecute her claims despite multiple orders from the Court to do so. Accordingly, Defendant has moved to dismiss the complaint for failure to prosecute. More than one hundred days have passed since Defendant filed that motion, and Plaintiff has missed her deadline to file an opposition. I recommend granting Defendant's motion and dismissing Plaintiff's complaint.
DISCUSSION
Plaintiff applied for disability benefits under Title II and XVI of the Social Security Act in April 2015. ECF No. 14 at 201-5. On June 27, 2017, an administrative law judge ("ALJ") found that although she had severe impairments, she still had the residual functional capacity to perform work that exists in significant numbers in the national economy and that she therefore was ineligible for benefits. ECF No. 14 at 42-54. The appeals council then denied her appeal in December 2017, see ECF No. 14 at 31-9, and she filed her complaint appealing those decisions on March 1, 2018, see ECF No. 2.
Defendant offered to stipulate to remand for further proceedings in September 2018, but Plaintiff never responded to that offer. See ECF No. 18. The Court then scheduled two conferences to discuss Defendant's offer, but Plaintiff never appeared. See ECF Nos. 19-21. The Court then ordered Defendant to file either a stipulation to remand or a motion to dismiss for failure to prosecute. See ECF No. 21. Pursuant to that order, Defendant filed the motion to dismiss on February 15, 2019. See ECF No. 24. Although Plaintiff's opposition to that motion was due May 31, 2019, she has not filed any opposition or response.
Federal Rule of Civil Procedure 41(b) provides that a party may move for involuntary dismissal if "the plaintiff fails to prosecute or to comply with these rules or a court order." The Court of Appeals has advised district courts to be hesitant to dismiss for procedural deficiencies caused by a pro se litigant. Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014) (citing Lucas v. Miles, 84 F.3d 532 (2d Cir. 1996)). To assess when dismissal is appropriate, the Court of Appeals has identified five factors to consider: (1) the duration of the plaintiff's failure to comply with the court order; (2) whether the plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Id.
Plaintiff's substantial delay here warrants dismissal. Plaintiff has taken no action in this case for over a year, despite Defendant's attempts to engage Plaintiff with four letters and six voice messages. See Baird Decl. ¶¶ 7-9, 11-2, 15, 17-8, 22, 24 (ECF No. 25). She has failed to appear for two conferences and to comply with two court orders. See Baird Decl. ¶¶ 6-10, 21-23. Copies of the Court's order directing Defendant to file a stipulation of remand or a motion to dismiss were mailed to Plaintiff (and not returned), as was the order directing plaintiff to file an opposition no later than May 31, 2019. See ECF Nos. 21, 23, 27. In the final order, she was advised that the failure to file an opposition by that deadline could result in dismissal for failure to prosecute. See ECF No. 27. Delay of this magnitude warrants dismissal. See Jeremy R.S. v. Comm'r of Social Security, No. 17-CV-714 (TWD), 2019 WL 529681, at *2 (N.D.N.Y. Feb. 11, 2019) (dismissing after plaintiff failed to file brief or other filing for one year); Lomack v. Comm'r of Soc. Sec., No. 18-CV-6083 (FPG), 2019 WL 132741, at *2 (W.D.N.Y. Jan. 8, 2019) (same after plaintiff failed to respond to motion or court order for four to five months); Toney v. Comm'r of Soc. Sec., No. 17-CV-733 (FPG), 2019 WL 132736, at *1 (W.D.N.Y. Jan. 8, 2019) (same after plaintiff failed to file brief or respond to court order for ten months); Bonnette v. Comm'r of Soc. Sec., No. 16-CV-6398 (ENV), 2018 WL 6173434, at *2 (E.D.N.Y. Nov. 26, 2018) (same after plaintiff's failure to file a brief delayed case by nearly one year); Gonzalez v. Comm'r of Social Security, No. 09-CV-10179 (RJS), 2011 WL 2207574 (S.D.N.Y. June 2, 2011) (same after plaintiff failed to respond to defendant's motion for ten months); see also Lee v. Trans Union LLC, No. 06-CV-4003 (PAC), 2007 WL 2388904, at *2 (S.D.N.Y. Aug. 21, 2007) (dismissing pro se litigant's complaint for failure to attend two pre-trial conferences). Hibbert v. Apfel, No. 99-CV-4246 (SAS), 2000 WL 977683, at *2 (S.D.N.Y. July 17, 2000) (same after plaintiff failed to respond for six months to defendant's proposal to remand case);
Plaintiff did communicate with the Pro Se Intake Unit in advance of an October 17, 2018 conference and indicated that she was unable to appear at that time. The Court moved the conference to October 26, 2018, and converted it to a telephone conference to accommodate the Plaintiff. See ECF No. 20. Plaintiff did not appear at the newly scheduled telephone conference. See ECF No. 21.
The other factors identified by the Court of Appeals do not militate against this conclusion. The delay has prejudiced both Defendant and the Court. See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 668 (2d Cir. 1980) ("Burgeoning filings and crowded calendars have shorn courts of the luxury of tolerating procrastination."); Lomack, 2019 WL 132741, at *4 (finding prejudice to Commissioner from delay of case because the "Social Security Administration is significantly overburdened with applications and appeals"). And there are no lesser sanctions—such as a monetary fine—practicable here given that Plaintiff is proceeding in forma pauperis and pro se. See Coss v. Sullivan Cty. Jail Adm'r, 171 F.R.D. 68, 73 (S.D.N.Y. 1997) ("Since Coss has proceeded in forma pauperis and pro se, the Court does not find the imposition of monetary sanctions to be an adequate penalty."). The Court should, therefore, grant the motion to dismiss.
CONCLUSION
Pursuant to Rule 41(b), I recommend GRANTING Defendant's motion and DISMISSING Plaintiff's complaint for failure to prosecute.
/s/_________
SARAH NETBURN
United States Magistrate Judge DATED: June 5, 2019
New York, New York cc: Alisha Neal
117 E. 118th Street, Apt. 607
New York, NY 10035
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Valerie E. Caproni at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).