Gallo v. Social Security Administration, Commissioner of

Filing 8

MEMORANDUM AND ORDER: This case is dismissed without prejudice in accordance with this court's 4 order and Rule 41(b) of the Federal Rules of Civil Procedure for Plaintiff's failure to prosecute the case or to comply with the rules of procedure and the court's orders. Signed by District Judge John W. Lungstrum on 4/13/2018. Mailed to pro se party John Neal Gallo by regular mail. (mdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

JOHN NEAL GALLO,

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Plaintiff,
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v.
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NANCY A. BERRYHIL,
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Acting Commissioner of Social Security,
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Defendant.
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_____________________________________ )

CIVIL ACTION
No. 18-2029-JWL

MEMORANDUM AND ORDER
Plaintiff filed this action pro se1 on January 19, 2018 seeking judicial review of a
decision of the Acting Commissioner of Social Security (hereinafter Commissioner)
denying disability insurance benefits (DIB) under sections 216(i), and 223 of the Social
Security Act. 42 U.S.C. §§ 416(i) and 423 (hereinafter the Act). (Doc. 1). On
January 29, 2018, the court denied Plaintiff’s motion to proceed in forma pauperis
because his Affidavit of Financial Status failed to show that he is unable to pay the
required filing fee. (Doc. 4). The court ordered him to pay the filing fee within 30
days and informed him that if he failed to pay the filing fee this action would be

1

Because he appears pro se, the court construes Plaintiff’s pleadings and briefs liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Travis v. Park City Mun. Corp., 565 F.3d
1252, 1254 (10th Cir. 2009). But, the court will not assume the role of advocate for him.
Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

dismissed without prejudice. (Doc. 4, p.2). Plaintiff received the court’s order on
February 1, 2018. (Doc. 5).
On March 12, 2018, when more than thirty days had passed and Plaintiff had not
paid the filing fee, the court issued an “Order to Show Cause” no later than April 11,
2018 “why this case should not be dismissed pursuant to Rule 41(b) of the Federal Rules
of Civil Procedure and Rule 41.1 of the Local Rules because of Plaintiff’s failure to
follow the court’s order or to prosecute this case.” (Doc. 7).
“A district court undoubtedly has discretion to sanction a party for failing to
prosecute or defend a case, or for failing to comply with local or federal procedural
rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Because dismissal is a
severe sanction, it should be imposed only if a “lesser sanction would not serve the ends
of justice.” Id. (quotation omitted). In evaluating whether dismissal is an appropriate
sanction, the district court should consider the following factors: (1) the degree of
actual prejudice to the opposing party, (2) the degree of interference with the judicial
process, (3) the litigant’s culpability, (4) whether the court warned the party in advance
that dismissal of the action would be a likely sanction for noncompliance, and
(5) whether a lesser sanction would be effective. Gripe v. City of Enid, 312 F.3d 1184,
1188 (10th Cir. 2002) (citing the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992)). AIt is within a court’s discretion to dismiss a case with prejudice if,
after considering all the relevant factors, it concludes that dismissal alone would satisfy
the interests of justice.” Ehrenhaus, 965 F.2d at 916.
2

Turning to the first factor, the Commissioner has apparently not been served and
has suffered no prejudice by Plaintiff’s failure to pay the filing fee or to actively
prosecute this case.

The second factor however supports dismissal of this action. The

manner in which Plaintiff has prosecuted this case (or, more accurately, not prosecuted
this case) has risen to the level of interfering with the judicial process. The court has
invested time and effort into shepherding this case through the briefing process laid out in
Local Rule 83.7.1, without success. Since filing his complaint and a motion to proceed
in forma pauperis, Plaintiff has taken no further action. He has responded in no way to
either the court’s order to pay the filing fee or its order to show cause.
This leads to consideration of the third factor which focuses on the plaintiff’s
culpability. The third factor weighs heavily in favor of dismissal. As noted above,
Plaintiff has done nothing since filing this case. The fourth factor is also satisfied. The
court’s “Order to Show Cause” specifically warned Plaintiff that his failure to respond
could result in dismissal of his case. (Doc. 7).
Finally, the court considers the efficacy of lesser sanctions. Here, the court has
given Plaintiff the opportunity to explain his failure to pay the fee--to no avail. Nothing
is happening, and the court may not leave a case with no activity on its docket
indefinitely. Moreover, the court can think of no appropriate lesser sanction in a Social
Security case which would secure prosecution of this case. After carefully reviewing
the record before the court and the history of this case, the court concludes that no
remedy short of dismissal would be effective.
3

After consideration of the five Ehrenhaus factors in light of the circumstances of
this case, the court concludes that the factors weigh in favor of dismissal of this action.
This case is interfering with the judicial process because it continues to linger on the
court’s docket without any progress toward resolution. Plaintiff’s culpability for this
predicament is high, as he has been made aware of his obligation and has been asked to
explain himself to no avail. The court forewarned plaintiff that his failure to respond
could result in dismissal and yet he still has not done so. At this point in time, the court
believes that dismissal is the only remedy that would be effective.
IT IS THEREFORE ORDERED that this case is dismissed without prejudice in
accordance with this court’s order (Doc. 4) and Rule 41(b) of the Federal Rules of Civil
Procedure for Plaintiff=s failure to prosecute the case or to comply with the rules of
procedure and the court’s orders.
Dated this 13th day of April 2018, at Kansas City, Kansas.

s/ John W. Lungstrum
John W. Lungstrum
United States District Judge

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