Brown v. Colvin

Filing 8

ORDER DISMISSING CASE without prejudice as requested by plaintiff. Signed by Magistrate Judge Brian K. Epps on 5/22/15. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
PAUL WARREN BROWN,
Plaintiff,
v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

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CV 315-033

ORDER
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Plaintiff filed the above-captioned social security appeal on April 2, 2015. (Doc. no. 1.)
On April 21, 2015, the Court denied Plaintiff’s request to proceed in forma pauperis and directed
him to pay the $400 filing fee after determining Plaintiff receives nearly $3,000 per month in
Veterans Administration Benefits and therefore appeared to have the financial resources to pay
the filing fee. (See doc. nos. 4-6.) Plaintiff responded to the Court’s Order with a motion to
voluntarily dismiss his case without prejudice. According to Fed. R. Civ. P. 41(a)(1)(i), Plaintiff
may dismiss his case without an Order from the Court. Therefore, the Court DIRECTS the Clerk
to DISMISS this civil action without prejudice and terminate all pending motions.

While the dismissal entered here is without prejudice,1 Plaintiff should consider that
the practical effect of dismissal may be with prejudice. This is because a claimant must

1

Unless the Court specifies otherwise, a dismissal for failure to prosecute operates as an
adjudication on the merits. See Fed. R. Civ. P. 41(b).

commence a civil action seeking review of a final decision of the Acting Commissioner of
Social Security “within sixty days after the mailing to him of notice of such decision or
within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. §
405(g). This sixty-day deadline, however, “is not jurisdictional, but is a statute of limitations
which is waivable by the parties and subject to the doctrine of equitable tolling.” Scott v.
Colvin, Civ. A. No. 13-0106, 2013 WL 2452313, at *2 n.2 (S.D. Ala. June 5, 2013) (citing
Bowen v. City of New York, 476 U.S. 467, 478-80 (1986).) Nevertheless, the law is clear
that the mere fact a complaint is dismissed without prejudice does not permit a plaintiff to
later file a complaint outside the statute of limitations. Christides v. Commissioner of Soc.
Sec., 478 F. App’x 581, 584 (11th Cir. 2012) (citing Bost v. Federal Express Corp., 372 F.
3d 1233, 1242 (11th Cir. 2004).)
SO ORDERED this 22nd day of May, 2015, at Augusta, Georgia.

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