BURKE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 21

ORDER granting 18 Motion for Reconsideration; vacating 14 Order to Show Cause; vacating 16 Report and Recommendations. By MAGISTRATE JUDGE JOHN H. RICH III. (jlg)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ANTONIO D. BURKE,
Plaintiff
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant

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No. 1:15-cv-158-JAW

ORDER GRANTING MOTION TO RECONSIDER AND
DIRECTING FILING OF STATEMENT OF ERRORS AND FACT SHEET
On December 2, 2015, the pro se plaintiff in this Social Security appeal filed a letter to me
that the court has construed as a motion to reconsider my November 28, 2015, recommended
dismissal of his case for failure to prosecute. See [Motion To Reconsider] (“Motion”) (ECF No.
18); Recommended Dismissal (ECF No. 16). For the reasons that follow, and without objection
from the defendant commissioner, see Defendant’s Response to Plaintiff’s Motion for
Reconsideration (“Response”) (ECF No. 20), the Motion is granted.
The plaintiff, who has at all times been acting pro se in this matter, initiated this action on
April 30, 2015, and, until November 30, 2015, had filed nothing further. In my Recommended
Dismissal, I noted that the court had issued procedural orders directing the plaintiff to file a
Statement of Errors on two occasions, although evidently only the second order was mailed to the
plaintiff, and it did not specify a precise filing deadline. See Recommended Dismissal at 1. I
further noted that, (i) on September 17, 2015, the court issued an order directing the plaintiff to
show good cause why this action should not be dismissed, (ii) the court mailed a copy of that order
to the plaintiff, and (iii) the envelope containing the order was thereafter returned, with a notation
from the United States Postal Service that the plaintiff had moved without leaving a forwarding
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address. See id. at 2. I recommended dismissal of this case without prejudice based on the
plaintiff’s failure to respond to the second order directing him to file a statement of errors or to
provide the court with a forwarding address, preventing further communications. See id. at 2-3.
Coincidentally, unaware of the pendency of the Recommended Dismissal, the plaintiff
went to the U.S. District Courthouse in Bangor on November 30, 2015, to provide the court his
updated contact information, see ECF No. 17, and learned of the Recommended Dismissal, a copy
of which he was provided. On December 2, 2015, he filed this Motion, stating that he had been
living with his ill mother in Georgia since May 2015 and that he “did an exchange of address”
before he departed for Georgia but never received any response from the court. See Motion.
The commissioner does not oppose the Motion in light of the plaintiff’s prompt response
to the Recommended Dismissal, his recent filing of a change of address, and his allegation that he
had earlier attempted to provide notice of a change of address. See Response at 2. She correctly
notes that the court’s primary concern, which was the plaintiff’s “communications cutoff,” has
been remedied. Id. She requests that the court reset briefing deadlines. See id.
In consideration of the plaintiff’s pro se status, his move to Georgia to care for his ill
mother, his apparent unsuccessful attempt to provide the court with updated contact information,
his provision on November 30, 2015, of his new address, his prompt filing of the Motion, and the
lack of any objection, the Motion is GRANTED. Both the Recommended Dismissal and my
September 17, 2015, order to show cause why the case should not be dismissed for lack of
prosecution, ECF No. 14, are VACATED. Finally, the procedural order issued in this case on
July 2, 2015, ECF No. 12, and amended on August 12, 2015, ECF No. 13, is further AMENDED
as follows:

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In accordance with Local Rule 16.3, the plaintiff shall file an itemized statement of specific
errors and fact sheet no later than December 31, 2015. The Fact Sheet for Social Security
Appeals can be found in the Forms section of the court’s web page (www.med.uscourts.gov), and
the itemized statement of specific errors is described in Local Rule 16.3.
The commissioner shall file an opposition to the plaintiff’s itemized statement of specific
errors no later than thirty (30) days after the plaintiff files his statement of errors. Any motions to
dismiss, remand, or to continue shall be filed no later than thirty (30) days after the plaintiff files
his statement of errors.
Unless dismissed, continued, or remanded, this case shall be set for oral argument during
the week of March 14, 2016. Depending on the number of cases to be heard, the court may set
oral argument on different days and in Bangor as well as Portland.
The Clerk of the Court is DIRECTED to mail a copy of this order to the plaintiff at the
address that he provided to the court on November 30, 2015.
NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file an
objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 14th day of December, 2015.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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