Weaver v. U. S. Social Security Administration et al

Filing 10

OPINION AND ORDER adopting Magistrate Janet F. Kings Non-Final Report and Recommendation 8 . Defendants Ms. Thomas and Georgia Department of Labor are dismissed without prejudice pursuant to Local Rule 41.3(A)(2) for failure to comply with a lawful order of the Court. Signed by Judge William S. Duffey, Jr on 2/27/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SALINAS ACOSTA WEAVER,
Plaintiff,
v.

1:16-cv-04550-WSD

U.S. SOCIAL SECURITY
ADMINISTRATION, MS.
THOMAS, assigned by Judge as
Representative-Payee, and
GEORGIA DEPARTMENT OF
LABOR,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s
Non-Final Report and Recommendation [8] (“R&R”), recommending that
Defendants Ms. Thomas and Georgia Department of Labor be dismissed without
prejudice for Plaintiff Salinas Acosta Weaver’s (“Plaintiff”) failure to abide by a
lawful order of the Court.
I.

BACKGROUND
On December 9, 2016, Plaintiff, pro se, filed an application to proceed in

forma pauperis [1] (“IFP Application”). Plaintiff attached to his IFP Application
his complaint against Defendants U.S. Social Security Administration,

Ms. Thomas, and Georgia Department of Labor for unpaid Social Security
benefits. ([1.1], [3]).
On December 13, 2016, the Magistrate Judge granted Plaintiff’s IFP
Application. (“December 13th Order” [2]). The Magistrate Judge ordered:
The Clerk is hereby DIRECTED to send Plaintiff the USM 285 form,
summons, and the initial disclosures form. Plaintiff is DIRECTED to
complete the USM 285 form, summons, and the initial disclosures
form, and to return one of each for each Defendant named in the
complaint within twenty (20) days from the entry date of this Order
to the Clerk of Court. Plaintiff is warned that failure to comply in a
timely manner could result in the dismissal of this civil action.
(Id. at 3). On December 13, 2016, the Clerk of Court sent the USM 285 form,
summons, and the initial disclosures form to Plaintiff. (December 13, 2016,
Docket Entry). Plaintiff did not return the forms as directed.
On January 12, 2017, the Magistrate Judge ordered Plaintiff to show cause
why Defendants Ms. Thomas and Georgia Department of Labor should not be
dismissed for failure to comply with the Court’s December 13th Order. (“January
12th Order” [7]). The Magistrate Judge ordered:
Plaintiff to show cause in writing within fourteen (14) days of entry
of this order why the complaint should not be dismissed as to
Defendants Ms. Thomas and Georgia Department of Labor pursuant
to Local Rule 41.3(A)(2), N.D. Ga.
The court further ORDERS that Plaintiff provide to the Clerk the
completed USM 285 form and summons for each of the above-named
Defendants and her Initial Disclosures as previously ordered within
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fourteen (14) days of entry of this order if Plaintiff wishes to proceed
against these Defendants.
Plaintiff is advised that failure to comply with these orders will result
in a recommendation of dismissal of the complaint with prejudice.
(Id. at 2). Plaintiff did not respond to the Magistrate Judge’s January 12th Order.
On February 2, 2017, the Magistrate Judge issued her R&R. In it, she
recommends that the Court dismiss this action for Plaintiff’s failure to comply with
the December 13th Order and January 12th Order. Plaintiff did not file 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).
No party objects to the R&R, and the Court thus conducts a plain error review of
the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983).
B.

Analysis

Under Local Rule 41.3(A)(2), “[t]he court may, with or without notice to the
parties, dismiss a civil case for want of prosecution if: . . . [a] plaintiff . . . shall,
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after notice, . . . fail or refuse to obey a lawful order of the court in the case.” L.R.
41.3(A)(2), NDGa.
Plaintiff failed to comply with the December 13th Order and January 12th
Order after being advised that failure to comply with these orders may result in the
dismissal of this action. The Magistrate Judge recommends this action be
dismissed for Plaintiff’s failure to comply with the Court’s orders. The Court finds
no plain error in this finding and recommendation. Slay, 714 F.2d at 1095.
Accordingly, this action is dismissed as to Defendants Ms. Thomas and Georgia
Department of Labor pursuant to Local Rule 41.3(A)(2).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Janet F. King’s Non-Final

Report and Recommendation [8] is ADOPTED.
IT IS FURTHER ORDERED that Defendants Ms. Thomas and Georgia
Department of Labor are DISMISSED WITHOUT PREJUDICE pursuant to
Local Rule 41.3(A)(2) for failure to comply with a lawful order of the Court.
SO ORDERED this 27th day of February, 2017.

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