Cain v. Social Security Administration et al

Filing 15

FINDINGS AND RECOMMENDATION recommending that Cain's complaint be dismissed without prejudice. A separate judgment should also be entered. Objections due 14 days from the date of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 8/7/2018. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

SHERRY CAIN
v.

PLAINTIFF
NO. 3:17-cv-00249 DPM/PSH

NANCY BERRYHILL, Acting Commissioner
of the Social Security Administration

DEFENDANT

FINDINGS AND RECOMMENDATION
INSTRUCTIONS

The following proposed Findings and Recommendation have been sent to United
States District Judge D.P. Marshall Jr. You may file written objections to all or part of
this Recommendation. If you do so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection, and (2) be received by the Clerk of this
Court within fourteen (14) days of this Recommendation. By not objecting, you may
waive the right to appeal questions of fact.

DISPOSITION
On September 19, 2017, plaintiff Sherry Cain (“Cain”) began this case by filing a
pro se complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the
final decision of the Acting Commissioner of the Social Security Administration
(“Commissioner”). The issues were joined on December 15, 2017, when the
Commissioner filed an answer and thereafter filed a transcript of the administrative
proceeding. On December 28, 2017, the Court issued a scheduling order. See Docket
Entry 13. In the order, Cain was directed to file a brief on or before February 8, 2018.
She was warned that her failure to file a timely brief could result in the dismissal of
this case for failure to prosecute.
Cain did not file a brief, a request for an extension of time to file a brief, or any
other submission by the February 8, 2018, deadline. Although the Court could have
thereafter properly recommended that this case be dismissed, out of an abundance of
caution, the Court gave her up to, and including, August 1, 2018, to file a brief in which
she explained why the Commissioner’s final decision is not supported by substantial
evidence on the record as a whole. Cain was warned that in the event she failed to file
a brief by August 1, 2018, the Court would recommend that her complaint be dismissed.
August 1, 2018, has now come and gone without Cain filing a brief, a request for an
extension of time to file a brief, or any other submission.
A federal court is vested with the inherent power to police its docket. As a part
of that power, the court may dismiss a case when a party fails to monitor the progress
of the case or fails to prosecute or defend it in a timely and diligent manner. See Local
Rule 5.5(c).
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Cain has failed to monitor the progress of this case and has failed to prosecute
it in a timely and diligent manner. Having weighed the competing interests, and on the
basis of the Court’s inherent policing power, the undersigned recommends that Cain’s
complaint be dismissed without prejudice. A separate judgment should also be entered.
DATED this 7th day of August, 2018.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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