Hill-Evans v. Commissioner of Social Security
Filing
13
OPINION AND ORDER adopting 11 Final Report and Recommendation. IT IS FURTHER ORDERED that this action is DISMISSED under this Court's Local Rule 41.3(A)(2) and Fed. R. Civ. P. 41(b) for Plaintiff Rose Mary Hill-Evans's failure to comply with a lawful order of the Court and willful abandonment of her Social Security appeal. Signed by Judge William S. Duffey, Jr on 11/5/2015. (anc)
of the Acting Commissioner of Social Security (the “Commissioner”). On
April 2, 2015, the Commissioner filed an Answer [6], and, that same day, the
Magistrate Judge entered an order [8] directing Plaintiff to file her brief on or
before May 4, 2015. Plaintiff failed to do so, and, on June 2, 2015, the Magistrate
ordered Plaintiff, within fourteen (14) days, to show cause as to why this action
should not be deemed abandoned. ([9]). The Magistrate also ordered Plaintiff to
file her brief within that same time frame, and admonished Plaintiff that failure to
show cause or file her brief would result in a recommendation that this action be
dismissed. To date, Plaintiff has neither responded to the show cause order nor
filed her brief. Plaintiff also has not filed any objections to the R&R.
II.
DISCUSSION
A.
Legal Standard
After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1);
Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S.
1112 (1983). A district judge “shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
2
objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and
recommendations to which objections have not been asserted, the Court must
conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093,
1095 (11th Cir. 1983), cert. denied, 464 U.S. 1050 (1984).
B.
Analysis
The local rules of this Court state that “[t]he court may, with or without
notice to the parties, dismiss a civil case for want of prosecution if . . . [a]
plaintiff . . . shall, after notice, . . .fail or refuse to obey a lawful order of the court
in the case.” L.R. 41.3(A)(2), N.D.Ga. The Federal Rules of Civil Procedure also
provide the Court with discretion to dismiss an action “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order.” Fed. R. Civ. P. 41(b).
“[W]hen a litigant has failed to obey a direct order of the court[,] dismissal is
appropriate.” Sussman v. Salem, Saxon & Nielsen, P.A., 154 F.R.D. 294, 299
(M.D. Fla. 1994) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).
The Magistrate Judge recommended dismissal of this action because
Plaintiff has failed to respond to the Court’s show cause order or to comply with
his orders to file her brief. (R&R at 3). The Magistrate concluded that “Plaintiff’s
conduct amounts to willful noncompliance with an Order of this Court and willful
3
abandonment of her Social Security appeal.” (R&R at 3). The Court agrees. See
Medrano v. Am. Home Mortg. Servicing, No. 1:09-cv-1003-BBM, 2009 WL
2486313, at *2 (N.D. Ga. Aug. 12, 2009) (dismissing action when pro se plaintiff
failed to respond to any court order or to keep an updated address on file).
Plaintiff’s pro se status does not excuse noncompliance with the Court’s
procedural rules. See Kelly v. Old Dominion Freight Line, Inc., 376 F. App’x 909,
913-14 (11th Cir. 2010) (per curiam) (“‘[P]rocedural rules in ordinary civil
litigation’ should not be interpreted ‘so as to excuse mistakes by those who
proceed without counsel.’” (quoting McNeil v. United States, 508 U.S. 106, 113
(1993))). The Court finds no plain error in the Magistrate Judge’s findings and
recommendation, and this action is required to be dismissed.
III.
CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge E. Clayton Scofield
III’s Final Report and Recommendation is ADOPTED.
IT IS FURTHER ORDERED that this action is DISMISSED under this
Court’s Local Rule 41.3(A)(2) and Fed. R. Civ. P. 41(b) for Plaintiff Rose Mary
4
Hill-Evans’s failure to comply with a lawful order of the Court and willful
abandonment of her Social Security appeal.
SO ORDERED this 5th day of November, 2015.
_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?