Brown v. Commissioner, Social Security

Filing 16

REPORT AND RECOMMENDATIONS re 14 MOTION to Dismiss filed by Commissioner, Social Security. Signed by Magistrate Judge Stephanie A Gallagher on 6/26/14. (c/m 6/26/14 jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANNTINETT MARY BROWN
v.
COMMISSIONER, SOCIAL SECURITY

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Civil Case No. CCB-13-2743
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REPORT AND RECOMMENDATIONS
Pursuant to Standing Order 2013-06, the above-referenced case was referred to me to
review the parties’ dispositive motions and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). I have considered the Commissioner’s Motion to
Dismiss. [ECF No. 14]. I find that no hearing is necessary. Local R. 105.6 (D. Md. 2011). For
the reasons set forth below, I recommend a show cause order be issued, requiring the Plaintiff to
file a response to demonstrate continuing intention to prosecute her appeal.
On September 17, 2013, Plaintiff Anntinett Mary Brown, who appears pro se, filed a
complaint appealing a denial of Social Security disability benefits. [ECF No. 1].

On January

24, 2014, I issued a scheduling order listing a deadline of March 28, 2014 for filing Plaintiff’s
Motion for Summary Judgment and supporting memorandum of law. [ECF No. 11]. However,
Plaintiff has not filed any documentation of any sort with the Court since her initial documents
on September 17, 2013. After the Commissioner filed its Motion to Dismiss, citing a failure to
prosecute, the Clerk’s Office mailed a Rule 12/56 letter to Ms. Brown. [ECF No. 15]. That
letter advised Ms. Brown that a failure to oppose the Commissioner’s motion could result in
dismissal of her case. Id. Ms. Brown filed no response.
The Commissioner now seeks dismissal of Ms. Brown’s case for failure to prosecute,
contending that Ms. Brown’s failure to file a Motion for Summary Judgment warrants dispositive
action. Def. Mot. at 2-3. The Commissioner cites cases from other district courts within the

Fourth Circuit to establish that Social Security appeals can be dismissed under like
circumstances. Id. I disagree with the Commissioner’s position on two grounds. First, the
scheduling order used in this district provides a deadline for filing a motion for summary
judgment, but contains no language requiring or expressly ordering that such a motion be filed in
order to proceed with an appeal. Because the cases cited by the Commissioner do not provide
express quotes from the scheduling orders used in those cases, it is unclear whether those orders
plainly instructed the plaintiffs that they must file a dispositive motion. Second, in at least
several of the cases cited by the Commissioner, additional intervening steps were taken, prior to
dismissal of the case, to ascertain whether the plaintiffs intended to pursue their appeals. See,
e.g., Paul v. Colvin, No. 3:13-cv-639-JRS, 2014 WL 896987 (E.D. Va. March 6, 2014) (noting
that the Commissioner had sent a warning letter to the plaintiff of her intent to file a motion to
dismiss if the plaintiff did not file a summary judgment motion, but no response was received);
Morgan v. Colvin, No. 3:13-cv-397-MR-DLH, 2014 WL 695284 (W.D.N.C. Feb. 24, 2014)
(noting that a show cause order had been sent to plaintiff, to no avail).
Moreover, despite what the practice may be in other courts, I do not believe it appropriate
to require a pro se plaintiff to file a dispositive motion in order to adjudicate a Social Security
appeal. In other cases in this District, pro se plaintiffs have written informal letters, have
submitted medical records with no cover letter or memorandum, or have filed no additional
documentation prior to the adjudication of their appeals. If the Commissioner files a motion for
summary judgment, this Court can use the transcript of the administrative proceedings and the
Commissioner’s motion to address the merits of a pro se plaintiff’s appeal, even if the plaintiff
does not file a dispositive motion.
Nevertheless, in light of Ms. Brown’s lack of recent communication with the Court and
her failure to respond to the Rule 12/56 letter, I recommend that the Court issue a show cause

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order. I recommend that the show cause order direct Ms. Brown to state, in writing, whether she
intends to proceed with her appeal and warn Ms. Brown that a failure to respond by the deadline
will result in dismissal of her case. If Ms. Brown indicates an intent to proceed on or before the
deadline set by the Court, then I will issue a new scheduling order giving the Commissioner sixty
additional days to file its Motion for Summary Judgment. If Ms. Brown does not respond to the
show cause order, then I recommend that the Commissioner’s Motion to Dismiss be granted.
Any objections to this Report and Recommendations must be served and filed within
fourteen (14) days, pursuant to Fed. R. Civ. P. 72(b)(2) and Local Rule 301.5.b.

Dated: June 26, 2014

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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