BURCHFIELD v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
REPORT AND RECOMMENDED DECISION re 1 Complaint filed by MARIA BURCHFIELD Objections to R&R due by 3/17/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (sfw)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1
On August 29, 2016, the plaintiff, then represented by attorney Francis M. Jackson, filed
this appeal from a denial of Social Security benefits. See ECF No. 1. On November 14, 2016,
after the plaintiff was granted leave to proceed in forma pauperis and effected service of her
complaint on the commissioner, the court granted Attorney Jackson’s motion to withdraw as her
attorney, and she has since proceeded pro se. See ECF Nos. 5-6, 9-12. On December 13, 2016,
the commissioner answered the complaint and filed a copy of the administrative record, see ECF
Nos. 13-14, and the court issued a Procedural Order directing the plaintiff, in accordance with this
court’s Local Rule 16.3, to file an itemized statement of specific errors and a fact sheet within 30
days of the filing of the transcript and answer, that is, by January 12, 2017, see ECF No. 15. The
clerk’s office indicated, in a private notation on the CM/ECF docket, that it mailed a copy of the
Procedural Order to the plaintiff at the address that she had previously provided to the court.
On January 31, 2017, I issued an Order To Show Cause, noting that the plaintiff had failed
to file her itemized statement of errors and fact sheet by January 12, 2017, as ordered, or by January
Nancy A. Berryhill, who is now the Acting Commissioner of Social Security, is substituted for former Acting
Commissioner Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
20, 2017, in accordance with a deadline extension the court granted sua sponte. See ECF No. 16.
I directed that she show good cause in writing, no later than February 14, 2017, why this action
should not be dismissed for failure to prosecute in light of her failure to timely file the itemized
statement of errors and fact sheet. See id. The clerk’s office indicated, once again in a private
notation on the CM/ECF docket, that it mailed a copy of the Order To Show Cause to the plaintiff.
The plaintiff did not show good cause by February 14, 2017, why this action should not be
dismissed for failure to prosecute; nor has she done so since that deadline elapsed.
“A district court’s inherent powers to sanction parties for litigation abuses include the
power to act sua sponte to dismiss a suit for failure to prosecute.” Diaz-Santos v. Department of
Educ. of Commonwealth of P.R., 108 Fed. Appx. 638, 640 (1st Cir. 2004). In addition, Federal
Rule of Civil Procedure 41(b) provides, “If the plaintiff fails to prosecute or to comply with these
rules or a court order, a defendant may move to dismiss the action or any claim against it.” Fed.
R. Civ. P. 41(b). “Although Rule 41(b) refers only to dismissal on a motion made by a defendant,
district courts may also sua sponte dismiss a complaint under Rule 41(b) for failure to comply with
a court order.” Unitronics (1989) (R”G) Ltd. v. Gharb, 85 F. Supp.3d 118, 126 (D.D.C. 2015).
The plaintiff’s failure to show cause in writing why her case should not be dismissed
warrants the dismissal of her action. See, e.g., United States v. Edmunds, Case No. 15-cv-2705
(JRT/TNL), 2016 WL 7670605, at *5 (D. Minn. Dec. 6, 2016) (rec. dec., aff’d Jan. 10, 2017)
(“[W]hile pro se litigants are accorded a certain degree of latitude, Defendant’s pro se status does
not excuse him from complying with this Court’s orders as well as the Federal Rules of Civil
Procedure and the Court’s Local Rules.”).
Yet, although dismissal is appropriate, a separate issue remains whether the dismissal
should be with prejudice. Unless the court directs otherwise, a dismissal for failure to prosecute
“operates as an adjudication on the merits.” Fed. R. Civ. P. 41(b). As a general rule, however,
dismissal of an action with prejudice is a sanction reserved for the most extreme misconduct. See,
e.g., Vázquez-Rijos v. Anhang, 654 F.3d 122, 127-28 (1st Cir. 2011). For example, “[d]ismissal
with prejudice for failure to prosecute is appropriate in the face of extremely protracted inaction
(measured in years), disobedience of court orders, ignorance of warnings, contumacious conduct,
or some other aggravating circumstance.” Pomales v. Celulares Telefónica, Inc., 342 F.3d 44, 48
(1st Cir. 2003) (citations and internal quotation marks omitted). “[W]here the case is close, courts
should prefer less severe sanctions that preserve the possibility of disposition on the merits.” Id.
In this case, the plaintiff failed to comply with two consecutive court orders, and with the
court’s local rules. This failure arguably warrants dismissal with prejudice; however, given her
pro se status, and erring on the side of caution, I recommend that the case be DISMISSED without
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 3rd day of March, 2017.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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