McKelphin-Barfield v. Colvin
MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Plaintiffs Complaint for Judicial Review of Decision of the Commissioner of Social Security (ECF No. 1 ) is DISMISSED without prejudice. IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order to Plaintiff, Gloria McKelphin-Barfield, at her last known address: 2210 Ann Ave., St. Louis, MO 63104, via U.S. Postal Mail and UPS. Signed by District Judge Ronnie L. White on 07/26/2016. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 4:15CV998 RLW
MEMORANDUM AND ORDER OF DISMISSAL
This is a prose action under 42 U.S.C. § 405(g) for judicial review of the final decision
of Carolyn W. Colvin, the Acting Commissioner of Social Security ("Commissioner"), finding
that Plaintiff was overpaid benefits, that Plaintiff was at fault in causing the overpayment, and
that recovery of the overpayment was not waived making Plaintiff liable for repayment of
$9,464.20. (Tr. 13-16) Plaintiff filed her Complaint on June 24, 2015, claiming that the final
decision of the Commissioner was not based on substantial evidence in the record because she
changed her name with the Social Security Administration ("SSA"), and she had some
documented disabilities that impaired her. (Compl., ECF No. 1) By Order of June 25, 2015, the
Court directed Plaintiff to "serve and file a brief within thirty (30) days after the Commissioner's
service of an answer and the administrative transcript." See E.D. Mo. L.R. 9.02. The answer
and transcript were filed on August 31, 2015, and Plaintiff was served with the documents by
first class mail. (ECF Nos. 10, 11) Plaintiffs brief was due on or before September 30, 2015.
The Complaint had been pending for a year with no further activity by Plaintiff to
prosecute her case. On June 23, 2016, this Court issued an Order to Show Cause allowing
Plaintiff twenty-one (21) days to show cause why her case should not be dismissed for failure to
prosecute or otherwise comply with this Court' s Case Management Order ("CMO"). (ECF No.
12) On July 13, 2016, Plaintiff filed a Memorandum for Clerk, requesting thirty (30) additional
days. In the Memorandum, Plaintiff provided no good cause for such extension of time and
merely indicated that she "missed where I needed to do this after the filing of the case." (ECF
No. 13) The Court granted Plaintiff a 10-day extension, giving Plaintiff until July 25, 2016 to
file a response. (ECF No. 14)
In a statement to show cause dated July 24, 2016, Plaintiff contends that she was unaware
that she had received the answer and transcript and found the documents on July 23 , 2016. (ECF
No. 15) However, the Court notes that it specifically referenced said answer and transcript in the
Order to Show Cause issued 30 days before Plaintiffs statement. (ECF No. 12) Plaintiff also
attached a letter to the Commissioner with questions indicating that she does not know where her
specific Complaint is, even though she completed and filed the pro se Complaint. (ECF No. 15)
Plaintiff now asks for an unspecified amount of time to file a brief.
The Court finds that the Complaint should be dismissed for failure to prosecute and
comply with this Court' s CMO in a timely manner. Plaintiffs two responses to this Court do not
provide sufficient cause for failing to comply with the CMO or for allowing the case that she
filed to languish for over a year. "Although prose pleadings are to be construed liberally, prose
litigants are not excused from compliance with relevant rules of the procedural and substantive
law." Schooley v. Kennedy, 712 F.2d 372, 373 (8th Cir. 1983) (citations omitted). While a pro
se litigant should receive meaningful notice of the requirements for proceeding with her case,
"the court is not required or permitted to act as counsel for any party." Id.
Here, the CMO that Plaintiff received clearly required her to serve and file a brief within
30 days after service of an answer and the transcript. While Plaintiff maintains that she did not
know where to file subsequent documents, she was able to file her original Complaint, Motion to
Proceed informa pauperis, and Financial Affidavit with this Court, as well as file responses to
the Court' s Order to Show Cause.
An involuntary dismissal for failure to comply with a district court' s order is within the
sound discretion ofthis Court. Id. at 374. Further, a dismissal without prejudice mitigates
against a finding that a court abused its discretion. Id. See also Pollins v. Colvin, 638 Fed.
App' x 575 (8th Cir. March 30, 2016) (concluding that the district court did not abuse its
discretion in dismissing social security claimant's appeal from the denial of supplemental
security income for failure to prosecute and comply with a court order).
IT IS HEREBY ORDERED that Plaintiffs Complaint for Judicial Review of Decision
of the Commissioner of Social Security (ECF No. 1) is DISMISSED without prejudice.
IT IS FURTHER ORDERED that the Clerk of the Court shall mail a copy of this Order
to Plaintiff, Gloria McKelphin-Barfield, at her last known address: 2210 Ann Ave., St. Louis,
MO 63104, via U.S. Postal Mail and UPS.
Dated this 26th day of July, 2016.
UNITED STATES DISTRICT JUDGE
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