Bowen v. Colvin
Filing
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MEMORANDUM OPINION. Signed by Magistrate Judge Thomas M. DiGirolamo on 7/7/2015. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Southern Division
MICHAEL BOWEN,
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Plaintiff,
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v.
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CAROLYN W. COLVIN,
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Acting Commissioner of Social Security,
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Defendant.
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Civil No. TMD 13-1898
MEMORANDUM OPINION GRANTING DEFENDANT’S
MOTION TO DISMISS
Michael Bowen (“Plaintiff”) seeks judicial review under 42 U.S.C. §§ 405(g) and
1383(c)(3) of a final decision of the Commissioner of Social Security (“Defendant” or the
“Commissioner”) denying his applications for disability insurance benefits and Supplemental
Security Income under Titles II and XVI of the Social Security Act. Before the Court is
Defendant’s Motion to Dismiss (ECF No. 29). No hearing is necessary. L.R. 105.6. For the
reasons that follow, Defendant’s Motion to Dismiss (ECF No. 29) is GRANTED.
I
Background
On June 28, 2013, represented by counsel, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision. Upon the parties’ consent, this case was
transferred to a United States Magistrate Judge for final disposition and entry of judgment. On
March 2, 2015, the Court granted Plaintiff’s counsel’s motion to withdraw. On March 18, 2015,
the Court approved Defendant’s proposed scheduling order directing Plaintiff to file a motion for
summary judgment by no later than May 1, 2015. After the deadline passed with no action by
Plaintiff, on June 18, 2015, the Commissioner filed a motion to dismiss the case under Fed. R.
Civ. P. 41(b) for lack of prosecution or, in the alternative, for an extension of time within which
to file her motion for summary judgment (ECF No. 29). On June 19, 2015, the Clerk of Court
notified Plaintiff via mail that he had seventeen days to file a response to Defendant’s Motion to
Dismiss and that failure to file a timely written response could lead to dismissal of the case or to
entry of judgment against him without further notice (ECF No. 30). See Roseboro v. Garrison,
528 F.2d 309 (4th Cir. 1975) (per curiam). The case then was reassigned to the undersigned. To
date, Plaintiff has filed neither a motion for summary judgment nor a response to Defendant’s
Motion to Dismiss. The matter is now fully submitted.
II
Discussion
“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); see
Link v. Wabash R.R. Co., 370 U.S. 626, 629-32, 82 S. Ct. 1386, 1388-89 (1962) (noting that
federal courts have inherent power to dismiss action for failure to prosecute either sua sponte or
on party’s motion). “The power to invoke this sanction is necessary in order to prevent undue
delays in the disposition of pending cases and to avoid congestion in the calendars of the District
Courts.” Link, 370 U.S. at 629-30, 82 S. Ct. at 1388. In considering whether to impose such a
dismissal, the Court should consider “(1) the degree of personal responsibility of the plaintiff,
(2) the amount of prejudice caused the defendant, (3) the existence of ‘a drawn out history of
deliberately proceeding in a dilatory fashion,’ and (4) the existence of a sanction less drastic than
dismissal.” Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (per curiam);
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see Ballard v. Carlson, 882 F.2d 93, 96 (4th Cir. 1989) (upholding dismissal of pro se plaintiff’s
claims and noting that pro se litigants, like other litigants, “are subject to the time requirements
and respect for court orders without which effective judicial administration would be
impossible”).
In considering the Chandler factors, the Court finds that the first factor weighs in favor of
dismissal. Plaintiff is proceeding pro se and bears responsibility for failing to prosecute this
action. He failed to comply with the Court’s March 2015 scheduling order and to respond to
Defendant’s Motion to Dismiss despite the Clerk’s Roseboro notice.
Moreover, as Plaintiff appears to have abandoned his claim, his failure to prosecute has
rendered Defendant unable to address the merits of his claim. As a result, Defendant suffers
prejudice by her inability to litigate the matter at all. The second factor, therefore, also favors
dismissal.
Further, with respect to the third factor regarding the pattern of Plaintiff’s conduct, his
delay of over two months suggests that the Court should expect only further delay should the
case proceed. The Court cannot further analyze the substance of Plaintiff’s claim because of his
failure to submit dispositive motions and his apparent abandonment of his claim. Finally, with
regard to the fourth factor, given the considerable passage of time with no response from
Plaintiff, there is no alternative sanction short of dismissal that would be appropriate in this case.
Because of Plaintiff’s pro se status and the severity of dismissal with prejudice, the matter is
DISMISSED WITHOUT PREJUDICE. See Payne ex rel. Estate of Calzada v. Brake, 439
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F.3d 198, 204 (4th Cir. 2006) (noting that Rule 41(b) sets forth nothing more than default rule for
dismissal with prejudice and that court has discretion to specify otherwise).1
III
Conclusion
For the foregoing reasons, Defendant’s Motion to Dismiss (ECF No. 29) is GRANTED.
Plaintiff’s Complaint (ECF No. 1) is DISMISSED WITHOUT PREJUDICE. A separate order
shall issue.
Date: July 7, 2015
/s/
Thomas M. DiGirolamo
United States Magistrate Judge
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The Court notes, however, that, should the applicable statute of limitations act as a bar to the
refiling of this action by Plaintiff, his own dilatory conduct would render practically the
dismissal as one with prejudice. See, e.g., Brickey v. Astrue, No. 3:12CV311-HEH, 2012 WL
5038333, at *2 (E.D. Va. Sept. 26, 2012), report and recommendation adopted, No. 3:12CV311HEH, 2012 WL 5038238 (E.D. Va. Oct. 18, 2012).
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