GREESON V. COLVIN
Filing
25
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/23/2015; that Defendant's Motion to Dismiss for Lack of Prosecution (Docket Entry 22 ) be GRANTED, that Plaintiff's case be DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and that the final decision of Defendant be AFFIRMED. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
LORETTA LYNN GREESON,
Plaintiff,
v
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant
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1:13CV906
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff btought this action pursuant to Section 1631(c)(3) of the Social Security Act
(the "Act"), as amended (13S3(c)(3)),
Commissioner
of
to
obtain review
Social Security denying het claim
("SSI") under Title XVI of the
of a final decision of
fot Supplemental
the
Security Income
Act. This matter is befote the Coutt on Defendant's Motion
to Dismiss for Failure to Ptosecute. (Docket F;nty 22.) The Court sent Plaintiff notice of
her rþht to respond (Docket Etttry 23), however, she has not filed a response and the pedod
for filing a response bdef has expired. Fot the reasons set forth below, it is tecommended
that the case be dismissed fot Plaintiffs failute to prosecute.
PROCEDURAL HISTORY
On June 24, 201.3, Plaintiff filed this action in the United States Disttict Court fot the
S7estern District
of
Missoud
for judicial review of the
unfavorable decision
of
the
Administative LawJudge ("AI-J'). pocket E.ttry 4.) Defendant filed a Motion to Change
Venue (Docket Entry 9) on Septembet 25,
20'1.3, assetting
Petitionet tesides in the Middle
District of North Carohna. Plaintiff, through counsel, initially challenged this assertion
(Docket Entty 10), but then conceded that she did indeed live in the Middle District of
Notth Caroltna (Docket Entry 11). Consequently, Defendant's Motion to Change Venue
was granted (Docket E.rtry 1.2) on October 8,201,3.
On October 10, 2013, Plaintiffs Missouti counsel moved (Docket E.ttty 13) to
withdraw as Plaintiffs attorney in this matter because he was not licensed to practice law in
this District. (Id. at 1.) Plaintiffs Missouti counsel's Motion for Leave to ìØithdraw pocket
E.rtry 13) states furthet that he had contacted PlaintifPs priot
represented her
Noth
Carohna counsel, who
"for her Social Security Disability claim while it was pending befote
Social Secudty Administr^tfon."
(Id.) Missouri
the
counsel represented that PlaintifPs pdor
Notth Carolina counsel agreed to speak to Plaintiff about taking over
as
het attotney in this
matter once the action was tansfered from Missouti to North Caroltna. (Id.) Missouri
counsel represented futther that he had explained to Plaintiff that her prior Notth Carolina
counsel was avitlable
to
discuss taking over het case, explained further
to Plaintiff the
urgency of obtaining alternate counsel, and also explained "it would be advisable fot Plaintiff
to immediately ptocure new counsel as deadlines in this case mây be pending in the near
future." (Id. at 1.-2.) However, PlaintifPs Missouri counsel noted that, as of October
201.3,
Plaintiff had not contacted
Noth
10,
Carolna counsel. Qd.) Counsel's Motion to
\X/ithdtaw (Docket E.rtry 13) was gtanted on October 11,201.3 (Docket E.ttty 14), which
was the same day the action was transferted to this
Defendant answeted on
Apdl
Disttict. (Docket Entry
1., 2014, (Docket
15.)
E.rry 18) and also filed
the
administrative tecotd (Docket Enties 19 and 20). That same day the Coutt sent Plaintiff
2
a
Letter (Docket Entty 21) informing her that the action would ptoceed by motions and that
Plaintiffls "motions must be filed within 45 days from the date of this lettet." (Id.) The
Lettet stated furthet that failute to comply with the Letter "will be consideted
a
violation of
Local Rules 1.2 and 7.3" "fot which sanctions may be imposed as provided by Local Rule
83.4." (Id. at2.) On April 11,2014, the Court's Lettet (Docket E.rtty 21) was returned
as
"undeliverable" and was matked ",{.TTEMPTED-NOT KNO\X/N/UNÂBLE TO
FORW,A.RD." (4/1,1,/2014 Minute
E"tty.) No motion or pleading from Plaintiff
has been
filed in this matter and the 45 days has expited.
On July 31, 2014, Defendant filed a Motion to Dismiss fot Lack of Prosecution.
pocket F,ntry 22.) On
-A.ugust 1,,201,4 the
Coun mailed Plaintiff aLetter informing het of
her rþht to tespond and instucting het to file any response within 21, days. pocket E.ttty
23.) Plaintiff was futthet informed that het "fultxe to tespond. . . within the allowed tjme
may cause the court to conclude that the defendant's contentions are undisputed. Thetefote,
unless you fìle a response in opposition to the motion,
it is likely yorrt case will be dismissed
or summary judgment granted in favot of the defendant." Qd.) On .,{.ugust
15,20"1.4, the
Coutt's Letter was returned as "undeliverable" and was matked "ATTEMPTED-NOT
KNO\K|NI/UNABLE TO FOR\)Ø,A.RD." (À.{inute Ent y 8/1,5/201,4.) The time fot Plaintiff
to respond has passed and she has not responded to Defendant's Motion to Dismiss for
Lack of Prosecution pocket E.rt y 22), nor has she fìled any othet document.
Last, on Jantary 8, 20L5, the undersigned affotded Plaintiff a ftnal oppottunity to
prosecute her case by entering an Order stating that she had fouteen days to file a motion
as
per the Coutt's scheduling otder and to tespond to Defendant's Motion to Dismiss.
J
Q)ocket E.rtty 24.) The undetsigned noted that íf Plaintiff failed to comply with this Otdet,
he would reconrnend dismissing her case with ptejudice.
(Id.) The time for Plaintiff to
comply with the Coutt's ptiot otdets and instructions has expited.
APPLICABLE LAW
Undet Rule 41 of the Federal Rules of Civil Procedure, "[i]f the plaintiff fails to
prosecute or to comply
with fthe F'edetal Rules of Civil Ptocedute] or a court order," the
Court may enter an ordet of involuntary dismissal. Fed. R. Civ. P 41(b).
In
assessing
whethet dismissal is apptoptiate urider Rule 41þ), u court evaluates (1) the degtee of the
plaintiffs petsonal tesponsibility for the failute; Q) the prejudice caused to the defendant;
(3)
whethet the plaintiff has a history of delibetately proceeding in a dilatory fashion; and (4) the
avaiablhty of a less dtastic sanction. Chandler basing Corp. u. Iuþt<, 669 tr.2d 91.9, 920 (4th
Ctr. 1,982);
see also
Ballard u. Carls0n,882F.2d 93,95 (4th Cir. 1989) (rolding the magisrate
judge's pdor explicit warning that a reconünendation of dismissal would tesult
if
the plaintiff
failed to obey the judge's ordet was proper grounds fot the district court to dismiss the suit
when the plaintiff did not comply despite the explicit watning)
Pro se litigants are not held to the same high standatds as attorneys.
Haghes u. Rowe,
449 U.S. 5, 10 n.7 (1980); Hairues u. Kemer,404 U.S. 519,520 (1972). Pto se litigants must,
however, meet certain standatds, including "time reqL irements and respect fot court otdets
without which effective judicial administration would be impossible." Ballard, 882 tr.2d at
96. .,\ccotdingly, pro
se litigants are subject
to the provisions of Rule 41. \X/hereaplarn:J:ff
fails to prosecute het Social Security appeal, dismissal is a necessary and appropriate temedy
fot the efficient administration of justice.
See
4
Unk
u. If,/abash
RR
Cr., 370 U.S. 626,
631.
(1,962)
(rolding that district court did not abuse its discretion in dismissing a case with
prejudice for failure to prosecute in order to "achieve the ordetly and expeditious disposition
of
cases."); Robinson u. IYix Filtration Corp.
LLC, 559 F.3d 403, 409-11 (4th Cir.
2010)
(recognizing continued vitality of Unk, court found district court did not abuse discretion in
denying a Rule 59(e) motion based on patty's failure to tespond to dispositive motion).
Finally, plaintiffs have a general duty to prosecute their cases. In this regard, a pÍo
plaintiff must keep the Coutt apprised of her current addtess.
See Carry u.
se
King 856 tr.2d
1439,1441, (9th Cir. 1983). -d plaintiffs failure to keep the Court infotmed of a new address
constitutes a fatftue to prosecute.
See
Blaknejt u. Commissioner of Sodal Sec.,
No. 1:12CV169-
LG-JMR, 2013 WL 6796552, x2 (S.D. Miss. Dec. 20, 2013) ("Blakney has not taken
any
action to prosecute her lawsuit since June 22, 201.2. She has appatently moved without
noti$ring the Court of het new addtess; thus, lesset sanctions are not avatlable to the Court
due to its inability to contact het. Finally, the delay is clearly atúibutable to Blakney since she
is a pro se plaintiff, and her conduct appears to be intentional, since she has abandoned her
lawsuit."); Bowie u. Reed, No. 1:12-cv-154-RJC,201,3 WL 1798968, *1 flX/.D.N.C. Apr1l,29
201,3)
("Plaintiffs failure to keep the Court informed of his new addtess constitutes a failute
to prosecute.');
Jones u. Social Secøriry
(E,.D. La. Feb. 22,201,3) adoþted
þt
Admin., Civil Action No. 12-2437, 201,3 WT' 1,397343
201.3
WL
1,397340 (E.D. La.
Apdl 5, 20'1.3); Crant
a.
Astrae, No.09-2818,201.0WL3023915 Q).Minn.July 13,201,0) adopted fu2010WL302661.
p. Minn. Aug. 2, 201.0); O'Neal u. Cook Motorcars, Ltd., No. Civ. L-96-181.6,
907900, x1-2
P.
1,997
WL
Md. Apr. 1,1997) (finding that a pro se plaintiff without a fìxed address ot
telephone number is still obligated to prosecute his case), ffirned 1,49 F.3d 1169 (4th Ctt.
5
1998) (unpublished); Empasis u. Sha/a/, No. C-94-20436 RMSø, 1995 !ØL 55295, *1 OJ.D.
Cal. Jan. 31, 1995) ("Plaintiffls failure
to keep the coutt infotmed of his new
address
constitutes failure to prosecute, as does his failue to comply with the court's Jtne 27,"1.994
procedutal otder.").
ANALYSIS
Plaintiff has cleady failed to prosecute this actjon and to comply with otdets of this
Coutt. Het action, thetefore, is subject to dismissal. Given the lengthy pedod dudng which
she has taken no action (it has been more than seven months since het dispositive motion
was due and at least fout months since Plaintiff was to tespond to Defendant's motion to
dismiss) the Court can only assume that she has decided not to pursue the mattet.
To determine whether dismissal is the appropÅate sanction fot Plaintiffs failute to
file any motions or responsive pleadings, the Coutt has consideted the factots outlined in
Chandler L,easing.
First, Plaintiff failed to follow the Cout's Scheduling Otdet ot tespond to
Defendant's motion
to dismiss in spite of the Coutt's transmittal of the tequired Roseboro
warning. It is true that Plaintiff likely did not receive the Coutt's Scheduling Otder ot its
Ro¡eboro
letter, because these documents have been teturned to the court as undeliverable.
Nevetheless, as explained above, Petitioner herself beats the responsibility of ptoviding the
Cout with a teliable means of
Therefore, the
Second,
communicating with het, which she has not done here.
ftst factor weighs in favor of dismissal.
Plaintifls failure to prosecute has tendered Defendant unable to address the
medts of PlaintifPs claim. Defendant has been required to ariswer the Complaint in this
action, as well as compile and file the Âdministrative Recotd. Plaintiff now appears to have
6
abandoned her claim. Thus, the second factor also favots dismissal. Similatly, factor three
favors dismissal because Plaintiff has had ample time to tespond to the motion to dismiss,
and the Court has also made effotts to prod her into fìling a brief, but Plaintiff has failed to
do eithet. Plaintiff has failed to follow ptocedute or to respond to Defendant. And, again,
Plaintiff has failed to provide the Court with
a
reliable means of communicating with her.
Finally, given PlaintifPs complete lack
of
compliance over a significant pedod
of
tìme, any lesser sanctions would likely be ineffective. The Fourth Circuit has held that
a
district court does not abuse its disctetion by dismissing an actton aftet issuing an explicit
and teasonable watning. Ba//ørd, 882 tr.2d àt 95-96. Additionally, lesser sanctions are not
avatlable to the Court due to its inability to contact her. Dismissal is an approptiate sanction
fot Plaintiffls failure to prosecute, nofl-compliance with the Coutt's orders, and failure to
ptovide the Coun with any reliable means of communicating with het.
CONCLUSION AND RECOMMENDATION
it is RECOMMENDED
ìíherefote, based on the fotegoing,
that Defendant's
Motion to Dismiss fot Lack of Ptosecution (Docket Entty 22) be GRANTED, that
Plaintiffs
case be
DISMISSED with ptejudice pursuant to Rule 41(b) of the Fedetal Rules
of Civil Ptocedure, and that the final decision of Defendant be AFFIRMED.
J
Janua
,201,5
7
ebster
ted States Magistrate Judge
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