Wieszalski v. Astrue
MEMORANDUM OPINION. Signed by Honorable Judge Mark E. Fuller on 3/20/2014. (wcl, )
IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
CIVIL ACTION NO. 3:12-cv-733-MEF
Upon consideration of the proceedings in this matter, the Court concludes that
Plaintiff’s claims against the Commissioner of Social Security (“Commissioner”) are due to
be dismissed without prejudice due to Plaintiff’s failure to prosecute this action. Plaintiff,
proceeding pro se, commenced this action on August 24, 2012, seeking review of a final
decision of the Commissioner. (Doc. # 1.) The Magistrate Judge to whom the case was
assigned entered a scheduling order governing the proceedings. The order required that the
Commissioner file an answer and that, within forty days thereafter, Plaintiff file a brief
identifying the issues the Plaintiff presents to the Court for resolution. The Commissioner’s
obligation to file the certified record of the administrative proceedings and a brief responding
to Plaintiff’s contentions is triggered by the filing of Plaintiff’s brief. (Doc. # 3.)
The Commissioner filed her answer on December 28, 2012. (Doc. # 9.) Thus,
Plaintiff’s brief in support of his complaint was due on or before January 6, 2013. Plaintiff
failed to file the required brief before the deadline and has not—in the fourteen months since
that date—sought an extension of time or otherwise contacted the Court. On February 19,
2014, the Magistrate Judge directed Plaintiff to show cause, in writing, why this action
should not be dismissed due to Plaintiff’s failure to prosecute the action by filing a brief in
support of his claims, as previously ordered. (Doc. # 14.) The Clerk mailed the show cause
order to Plaintiff’s address of record, but the United States Postal Service returned it with the
notation, “Forward Time Expired, Returned to Sender.” The deadline for Plaintiff’s response
to the show cause order has now passed.
Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f 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.” Fed. R. Civ. P. 41(b). “Despite the plain language of
Rule 41(b) indicating that a defendant may move for dismissal, a district court may sua
sponte dismiss a complaint under the authority of either (1) Rule 41(b) or (2) the court’s
inherent power to manage its docket.” Fequiere v. Alabama State University, ___ Fed.
App’x ___, 2014 WL 868053, at *1 (11th Cir. Mar. 6, 2014) (unpublished opinion) (citing
Betty K. Agencies, Ltd. v. M/V Monada, 432 F.3d 1333, 1337–38 (11th Cir. 2005)). A
district court may dismiss a case for failure to prosecute only “as a last resort, when: (1) a
party engages in a clear pattern of delay or willful contempt (contumacious conduct); and
(2) the district court specifically finds that lesser sanctions would not suffice.” World Thrust
Films, Inc. v. Int’l Family Entertainment, Inc., 41 F.3d 1454, 1456 (11th Cir. 1995).
“Dismissal for disregard of a court order is generally not an abuse of discretion.” Thomas
v. Bank of America, N.A., ___ Fed. App’x ___, 2014 WL 657830, at *2 (11th Cir. Feb. 21,
2014) (affirming dismissal due to plaintiff’s failure to comply with court order to serve
defendants at a particular address).
In the absence of any explanation by Plaintiff, the Court concludes that he has
engaged in a clear pattern of delay or willful contempt, evidenced by his failure to comply
with the orders of this Court. The Court’s docket gives no indication that Plaintiff failed to
receive the initial procedural order that directed him to file a brief in support of his
complaint, nor does it suggest any reason for Plaintiff’s noncompliance. The Court’s show
cause order gave Plaintiff notice that the Court contemplated dismissing this action due to
his failure to prosecute it and directed him to file a written response. Although the Court
acknowledges the likelihood that Plaintiff is unaware of the show cause order, Plaintiff’s
failure to receive that written order is a direct result of his failure to notify the Court of his
current mailing address.
Upon consideration of the proceedings in this matter, the Court finds that dismissal
without prejudice is the least severe sanction that will remedy Plaintiff’s inaction in the
present case.1 The Court has contemplated lesser sanctions and concludes that there are no
Although the civil action filing deadline has expired, a dismissal without prejudice does
not have the same effect as a dismissal with prejudice in this case because the sixty-day period for
filing a civil action seeking review of a final decision of the Commissioner is not absolute. See 42
U.S.C. § 405(g) (allowing commencement of a civil action “within sixty days after the mailing to
[the claimant] of notice of [the Commissioner’s final decision] or within such further time as the
Commissioner of Social Security may allow”) (emphasis added). Dismissal without prejudice leaves
open the possibility that plaintiff may file a new civil action if he obtains from the Commissioner
“such further time” to do so. Although Plaintiff has not sought here to demonstrate good cause for
his failure to comply with the Court’s orders, such a showing may persuade the Commissioner to
exercise her authority to allow Plaintiff additional time to file a civil action.
lesser sanctions that would suffice. The purpose of the Magistrate Judge’s procedural order
was to expedite review of this Social Security appeal by, inter alia, requiring Plaintiff to
identify the specific issues providing a basis for relief. (Doc. # 3, ¶ 2.) The order further
required that Plaintiff identify the specific portions of the administrative transcript that
support Paintiff’s claims, contentions, or arguments. (Doc. # 3, ¶ 5,) The Commissioner is
required to respond directly to the issues specifically raised in the Plaintiff’s brief. (Doc. #
3, ¶ 3.) As a result of Plaintiff’s failure to file a brief, neither the decision of the
Commissioner nor the record of the administrative proceedings are of record in this Court.
The Court declines to require the Commissioner to now file the administrative record so that
the Court and the Commissioner may proceed further in this action without Plaintiff’s
participation. Allowing this action to go forward without Plaintiff’s allegations of error
would prejudice the Commissioner’s defense, as it precludes the Commissioner from
formulating tailored arguments in support of her final decision. It would also hamper the
Court’s ability to provide a focused review of the decision below. The Court declines to
impose financial sanctions in view of Plaintiff’s poverty, as evidenced by his petition to
proceed in forma pauperis. (Doc. # 2.) Because Plaintiff has failed to advise the Court of
his whereabouts, the Court has no reason to believe that Plaintiff will either receive notice
of or comply with any further orders this Court may enter imposing any lesser sanction.
Thus, any lesser sanction would not obtain Plaintiff’s compliance with the Court’s orders.
Under these circumstances, dismissal without prejudice is appropriate. See Ramsay v. Bailey,
531 F.2d 706, 707 (5th Cir. 1976)2 (court’s inherent power to dismiss for want of prosecution
may be exercised sua sponte “whenever necessary to ‘achieve the orderly and expeditious
disposition of cases’”) (citing Link v. Wabash Railroad Co., 370 U.S. 626, 630 (1962)).
Plaintiff has twice failed to follow the directives of this Court, demonstrating a clear
pattern of delay or willful contempt. For the reasons set forth above, no lesser sanction than
dismissal without prejudice will suffice to obtain Plaintiff’s compliance with the Court’s
orders. Accordingly, pursuant to its inherent authority and Rule 41(b) of the Federal Rules
of Civil Procedure, the Court will enter judgment dismissing this action without prejudice
due to Plaintiff’s failure to prosecute it.3
DONE this the 20th day of March, 2014.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE
In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. Nov. 3, 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down
prior to the close of business on September 30, 1981.
See Enix v. Commissioner of Social Sec., 461 Fed. App’x 861 (11th Cir. 2012) (affirming
district court’s dismissal of a Social Security appeal due to plaintiff’s failure to file a brief
challenging the ALJ’s decision despite two orders to do so; on appeal, plaintiff did not argue that
the dismissal on the basis of her failure to prosecute was erroneous); see also Shields v.
Commissioner of Social Sec., 474 Fed. App’x 857 (3rd Cir. 2012) (affirming dismissal of Social
Security appeal for failure to prosecute); Tripp v. Commissioner of Social Sec. Admin., 471 Fed.
App’x 631 (9th Cir. 2012) (affirming dismissal for failure to prosecute and failure to comply with
court orders); Johnson v. Astrue, 325 Fed. App’x 233 (4th Cir. 2009) (affirming dismissal of
complaint pursuant to Rule 41(b) for failure to prosecute); Ortega v. Apfel, 5 Fed. App’x 96 (2nd
Cir. 2001) (same).
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