Bullock v. Colvin

Filing 16

ORDER denying 12 Motion to Dismiss for Lack of Prosecution; denying 15 Motion to Appoint Counsel. The Scheduling Order shall be amended as follows: Plaintiff's Motion for Summary Judgment and supporting memorandum is due 60 days from the entry of this Order, and Defendant's Motion for Summary Judgment and supporting memorandum is due 60 days after Plaintiff files his Motion for Summary Judgment. Plaintiff shall be permitted one response to Defendant's Motion for Summary Judgment, which shall be filed 14 days after the filing of Defendant's Motion. Signed by District Judge Robert J. Conrad, Jr on 1/4/2016. (Pro se litigant served by US Mail.)(chh)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-00009-RJC
BILLY GENE BULLOCK,

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Plaintiff,
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vs.
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CAROLYN W. COLVIN, Acting
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Commissioner of Social Security,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER comes before the Court on Defendant’s Motion to Dismiss for Lack of
Prosecution, (Doc. No. 12), and Plaintiff’s Motion to Appoint Counsel, (Doc. No. 15).
I.

BACKGROUND
Plaintiff filed Complaint in this civil action on January 7, 2015, along with his Pro Se

Motion to Proceed in Forma Pauperis. (Doc. Nos. 1, 2). The Court granted Plaintiff’s Motion to
Proceed in Forma Pauperis on January 26, 2015. (Doc. No. 3). On March 16, 2015, the Court
issued a “text-only” Scheduling Order directing Plaintiff to file his Motion for Summary
Judgment by May 15, 2015, and Defendant to file her Motion for Summary Judgment by July
14, 2015. Plaintiff failed to file his Motion for Summary Judgment; therefore, Defendant filed
her Motion to Dismiss for Lack of Prosecution on June 26, 2015. (Doc. No. 12). On July 6,
2015, Plaintiff, who is proceeding pro se, filed his Response in Opposition to Defendant’s
Motion, (Doc. No. 14), as well as his Motion to Appoint Counsel, (Doc. No. 15). Defendant has
not filed a reply to Plaintiff’s Response in Opposition and has not filed a response to Plaintiff’s
Motion to Appoint Counsel, and the time for doing so has expired.

II.

DISCUSSION
First, Defendant seeks dismissal of the case due to Plaintiff’s failure to file his Motion for

Summary Judgment. A district court has the authority to dismiss a plaintiff’s action because of
his failure to prosecute, either upon a defendant’s motion or sua sponte. Link v. Wabash R.R.
Co., 370 U.S. 626, 629 (1962). Dismissal under Rule 41(b), however, is a harsh sanction that
should not be invoked lightly. McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976). In this
case, Plaintiff has responded and provided an explanation for his failure to file his Motion for
Summary Judgment. Consequently, the Court finds that dismissal at this stage in the case is not
warranted, and Defendant’s Motion will be denied. Plaintiff is warned, however, that his failure
to properly prosecute this case going forward may result in the case being dismissed with
prejudice.
Second, Plaintiff requests appointment of legal counsel. Plaintiff cites no applicable
authority supporting his request for court-appointed counsel in a civil case. Moreover, the Court
is not aware of any case law, statute, Federal Rule of Civil Procedure, or Local Rule requiring
the appointment of counsel in a civil case such as the one brought by Plaintiff, and no funds have
been appropriated for that purpose. Therefore, Plaintiff’s motion will be denied.
III.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1. Defendant’s Motion to Dismiss for Lack of Prosecution, (Doc. No. 12), is DENIED;
2.

Plaintiff’s Motion to Appoint Counsel, (Doc. No. 15), is DENIED;

3. The Scheduling Order shall be amended as follows: Plaintiff’s Motion for Summary
Judgment and supporting memorandum is due sixty (60) days from the entry of this
Order, and Defendant’s Motion for Summary Judgment and supporting memorandum

is due sixty (60) days after Plaintiff files his Motion for Summary Judgment. Plaintiff
shall be permitted one response to Defendant’s Motion for Summary Judgment,
which shall be filed fourteen (14) days after the filing of Defendant’s Motion.
Signed: January 4, 2016