Harper v. Social Security, Commissioner of
ORDER Declining to Adopt 10 REPORT AND RECOMMENDATION. Signed by District Judge Sean F. Cox. (JMcC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 16-11428
Commissioner of Social
Honorable Sean F. Cox
Acting through counsel, Barry F. Keller, on April 20, 2016, Plaintiff filed this action
under 42 U.S.C. § 405(g), challenging a final decision of the Commissioner of Social Security.
The matter was referred to Magistrate Judge Patricia Morris for determination of all nondispositive motions pursuant to 28 U.S.C. § 636(b)(1) and Report and Recommendation pursuant
to § 636(b)(1)(B) and (C). The matter is currently before the Court on Plaintiff’s objections to a
Report and Recommendation issued by Magistrate Judge Morris on September 20, 2016 (“the
In the R&R, Magistrate Judge Morris set forth the procedural history of this case as
Pursuant to 28 U.S.C. § 636(b)(1)(B), E.D. Mich. LR 72.1(b)(3), and by
Notice of Reference, this case was referred to the undersigned magistrate judge
for the purpose of reviewing a final decision by the Commissioner denying
Harper’s claim for disability benefits. (Doc. 3; Tr. 1-3).
Harper’s complaint was filed on April 20, 2016. (Doc. 1). The following
day, a court clerk filed notice that Harper had not paid his filing fee; correction of
this error was to occur by April 28, 2016, on penalty of dismissal. (Doc. 2). On
May 3, 2016, the Court ordered Harper to show cause why his complaint should
not be dismissed for failure to prosecute, i.e. to pay the filing fee. (Doc. 4). On
May 11, 2016, Harper filed a motion to proceed in forma pauperis (Doc. 5),
which was granted on May 12, 2016 (Doc. 7). Also on May 16, 2016, the Court
issued a summons for Defendant. (Doc. 8).
Three months later, on August 12, 2016, the Court took notice that the
summons remained unserved, and issued an order directing Plaintiff to show
cause why his case should not be dismissed for failure to prosecute, pursuant to
Local Rule 41.2. (Doc. 9). Plaintiff was notified that “[f]ailure to respond may
result in dismissal of the case,” and was ordered to respond by August 26, 2016.
(Id.). That deadline expired nearly two weeks ago, yet Plaintiff has failed to
respond to the order to show cause, or to make his presence known on the docket
in any way.
(R&R at 1-2) (emphasis added).
In the R&R, the magistrate judge analyzed whether, under Fed. R. Civ. P. 41(b), this
action should be dismissed for failure to prosecute and/or failure to comply with the Court’s
orders. (Id. at 2-4). In the Sixth Circuit, the following four factors are considered in determining
whether a case should be dismissed for want of prosecution: 1) whether the party’s failure is due
to willfulness, bad faith, or fault; 2) whether the adversary was prejudiced by the dismissed
party’s conduct; 3) whether the dismissed party was warned that failure to cooperate could lead
to dismissal; and 4) whether less drastic sanctions were imposed or considered before dismissal
of the action. Saulsberry v. Holloway, 622 F. App’x 542, 545 (6th Cir. 2015).
Magistrate Judge Morris found that the first factor weighed in favor of dismissal because
“Plaintiff’s failure to respond to the second order to show cause suggests that he has willfully or
neglectfully disregarded the Court’s orders.” (R&R at 3) (emphasis added). She found that the
second factor did not weigh in favor of dismissal. As to the third factor, she noted that Plaintiff
has “been ordered to show cause why this matter should not be dismissed for failure to prosecute
twice, and has on both occasions been warned that failure to respond could result in dismissal,”
and therefore, the third factor weighed in favor of dismissal.” (Id. at 4). “Finally, in light of
Plaintiff’s repeated failure to abide by deadlines and the Court’s orders, and his total failure to
respond to the Court’s second order to show cause by the August 12, 2016 deadline,” Magistrate
Judge Morris was “not persuaded that a sanction less than dismissal would be appropriate in this
matter.” (Id.). As a result, she recommended that “the case be dismissed with prejudice for
failure to prosecute pursuant to Fed. R. Civ. P. 42(b) and EDMI L.R. 41.2” (R&R at 4-5).
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R. “The district judge to whom the case is assigned shall
make a de novo determination upon the record, or after additional evidence, of any portion of the
magistrate judge’s disposition to which specific written objection has been made.” Id.
On September 21, 2016, the day after the R&R was issued, Plaintiff’s Counsel filed
objections to the September 20, 2016 R&R. (D.E. No. 11). Plaintiff objects to the magistrate
judge’s conclusion as to each of the factors that she found to weigh in favor of dismissal.
Plaintiff objects to the magistrate judge’s conclusion that the failure to respond to the
second show cause order was due a willful or neglectful disregard of the Court’s orders and
objects to her recommendation that the case be dismissed with prejudice. In sum, Plaintiff’s
Counsel seeks to blame his legal assistant for his failure to respond to the magistrate judge’s
second show cause order. Counsel states that his legal assistant, who he asserts is the “person in
charge of monitoring the Social Security Disability Docket” is “the only person who received
Notifications from the Federal Court” regarding this case, was off for a bereavement leave for
some unspecified period of time, and then took a leave of absence at some unspecified time. But
Plaintiff’s Counsel should be monitoring the cases he has filed and is required, under the
electronic filing system, to register such that he personally receives notifications of filings in his
cases. Plaintiff’s Counsel appears to have since rectified that error and will now get notices in
The Court notes that Plaintiff’s Counsel has offered no explanation as to why the
summons, issued on May 12, 2016, in this matter has not been served. Yet Plaintiff’s Counsel
asks this Court not to dismiss this action and requests “thirty days to properly prosecute and
proceed with this case.” (Objs. at 5).
Having reviewed the docket in this action, the R&R, and Plaintiff’s Objections, the Court
finds that Magistrate Judge Morris’s recommendation that this case be dismissed with prejudice
for failure to prosecute was reasonable and warranted under the circumstances presented. This
Court, however, is reluctant to penalize Plaintiff for the actions of his counsel.
“Federal courts have inherent powers necessary for them to function as an institution.”
In re Smothers, 322 F.3d 438, 442 (6th Cir. 2003) (citing Chambers v. NASCO, 501 U.S. 32, 43
(1991) and Hadix v. Johnson, 144 F.3d 925, 937 (6th Cir. 1998)). Those powers include the
authority to impose monetary sanctions where appropriate. Id. Under the circumstances
presented here, the Court concludes that some form of sanction is necessary for Counsel’s
neglectful disregard of the magistrate judge’s orders in this case.
Accordingly, the Court DECLINES to Adopt the R&R in that the Court will not dismiss
this action without prejudice at this juncture. Instead, the Court ORDERS that:
No later than October 21, 2016, Plaintiff’s Counsel shall pay a monetary sanction of
$100.00, in a check made payable to the Legal Aid and Defender Association, at 613
Abbott Street Detroit, MI 48226, and shall file a statement with this Court indicating that
the sanction has been paid; and
No later than October 21, 2016, Plaintiff’s Counsel shall serve the complaint and
summons and file an appropriate proof of service on the docket. Plaintiff’s Counsel is
cautioned that if he fails to so, this action will be dismissed with prejudice.
IT IS SO ORDERED.
S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: October 12, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
October 12, 2016, by electronic and/or ordinary mail.
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