Prichard v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATIONS re 4 Complaint filed by John C Prichard: that case be DISMISSED upon plaintiff's failure to prosecute and failure to comply with the court's order. Objections to R&R due by 8/13/2012. Signed by Magistrate Judge Stephanie K. Bowman on 7/27/12. (jl1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN C. PRICHARD,

Case No. 1:11-cv-664

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
The procedural history of this social security case was previously recounted in a
Report and Recommendation filed on April 2, 2012, but is repeated here for the
convenience of this Court:
On September 23, 2011, Plaintiff, through counsel, initiated this lawsuit,
seeking judicial review of an adverse decision by the Commissioner of Social
Security that denied him benefits under the Social Security Act. On
December 16, 2011, the Defendant filed a motion to dismiss this social
security appeal, or alternatively, for summary judgment, on grounds that
Plaintiff’s complaint is time-barred. (Doc. 6). In addition to filing a belated
response in opposition to Defendant’s motion, Plaintiff filed a separate
motion seeking a finding of “excusable neglect” sufficient to toll the
applicable statute of limitations in this case. (Doc. 9).
Defendant initially filed no response to Plaintiff’s motion. However, on March
6, 2012, Plaintiff himself filed an “amended” response to Defendant’s motion
to dismiss as well as an amendment to his alternative motion for a finding of
excusable neglect. (Doc. 10). Plaintiff states in his amended response that
on February 24, 2012, counsel received an order from the Appeals Council
granting Plaintiff a retroactive extension of time in which to file a civil action,
up to and including the filing date of this action on September 23, 2011.
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.......[T]he Defendant recently filed both an Answer to the Complaint and a
copy of the certified administrative record. (Docs. 10, 11).
Technically, the fact that the Appeals Council has granted a retroactive
extension of time to Plaintiff in which to initiate a civil lawsuit moots both
parties’ motions. In other words, Plaintiff’s lawsuit in this Court is timely
because it was filed within the limitations period permitted by statute.
Section 205(g), 42 U.S.C. §405(g) permits a civil action to be commenced
within sixty days after the mailing of a notice of the Commissioner’s decision
“or within such further time as the Commissioner may allow.”
(Doc. 14). Based upon the fact that the Commissioner authorized Plaintiff’s lawsuit as
timely filed some months after its filing in this Court, the Court denied Defendant’s motion
to dismiss Plaintiff’s appeal as time-barred, and denied Plaintiff’s motion for finding of
excusable neglect. (Id.).
Once a certified administrative record is filed, a plaintiff has forty-five (45) days in
which to file a statement of errors. See General Order Cincinnati 12-01,1 Magistrate
Judges’ General Order Concerning Social Security Appeals (February 21, 2012). That
date expired on or about May 14, 2012. To ensure that this case would proceed on
course, the Court’s Report and Recommendation and subsequent Order also expressly
directed Plaintiff to file his statement of errors “on or before May 17, 2012.” (Id. at ¶2,
adopted by Doc. 15).
Plaintiff sought no extension, and failed to file his statement of errors in the time
allotted. Based upon Plaintiff’s failure to file his statement of errors, the Court entered a
“show cause” order on July 5, 2012, directing Plaintiff to “show cause, on or before July
20, 2012, for his failure to file a timely Statement of Errors,” explaining that the Court would

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The Order appears to be m istakenly listed on the Court’s website under Cincinnati Orders as
General No. 12-02.

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“accept a belated Statement of Errors to be tendered as an exhibit to Plaintiff’s explanation
of cause” if filed by July 20, 2012, but expressly warning counsel that “[a] failure to comply
with this order may result in the recommended dismissal of Plaintiff’s case for failure to
prosecute.” (Doc. 16). As the Court noted in its Order to Show Cause, “[p]articularly in
light of the procedural history of this case, Plaintiff’s failure to timely file a statement of
errors cannot be easily excused.” (Id.).
Plaintiff has failed to heed the Court’s warning that his failure to timely file a
statement of errors or comply with the Court’s Order placed his case in jeopardy. The
record reflects that Plaintiff has failed to file any response at all to the Court’s last Order.
Accordingly, IT IS RECOMMENDED THAT:
This case be DISMISSED based upon Plaintiff’s failure to prosecute and failure to
comply with the Court’s Order directing him to “show cause” for his failure to file a
statement of errors.

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

JOHN C. PRICHARD,

Case No. 1:11-cv-664

Plaintiff,

Beckwith, J.
Bowman, M.J.

v.

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of the
objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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