Mosely v. Commissioner of Social Security

Filing 13

REPORT AND RECOMMENDATIONS that this action be dismissed w/out prejudice for failure to prosecute pursuant to Fed.R.Civ.P. 41(b). Objections due w/in fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 2/28/2013. (kk2)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Alice T. Mosely,

:

Plaintiff,

:

v.

:
:

Commissioner of
Social Security,

Case No. 2:12-CV-836
JUDGE GREGORY L. FROST
MAGISTRATE JUDGE KEMP

:

Defendant.

:
REPORT AND RECOMMENDATION

This is a social security case.

On September 25, 2012, the

Court directed plaintiff to file a statement of errors
within 30 days after the administrative record was filed.
Plaintiff's brief was due on January 13, 2013.

On January 24,

2013, this Court noted that no statement of errors had been
filed, and ordered plaintiff to file a statement of errors within
21 days or face dismissal of this action without prejudice for
failure to prosecute.

Plaintiff has not responded to that order.
I.

If the plaintiff fails properly to prosecute an action,
it can be dismissed either pursuant to the Court's inherent
power to control its docket, or involuntarily under Fed. R.
Civ. P. 41(b).

Link v. Wasbash R. Co., 370 U.S. 626 (1962);

Boudwin v. Graystone Insurance Co., 756 F.2d 399 (5th Cir.
1985).

Dismissal for failure to prosecute can occur where,

for example, a plaintiff fails to respond to an order
directing that he file a brief.

Dynes v. Army Air Force

Exchange Service, 720 F.2d 1495 (11th Cir. 1983).
Ordinarily, some notice of the court's intention to dismiss
for failure to prosecute is required, see Harris v.
Callwood, No. 86-4001 (6th Cir. April 21, 1988), but that

requirement is met if the Court affords a plaintiff a
reasonable period of time to comply with orders before the
dismissal occurs.

Sepia Enterprises, Inc. v. City of Toledo,

462 F.2d 1315 (6th Cir. 1972)(per curiam).

Such a dismissal

is also appropriate for failure to respond to a summary
judgment motion.

See Stanley v. Continental Oil Co., 536

F.2d 914 (10th Cir.

1976); see also Lang v. Wyrick, 590 F.2d

257 (8th Cir. 1978).
II.
The facts of this case indicate a clear failure to
prosecute.

The Court specifically advised plaintiff in two

prior orders of the date by which a statement of errors was due,
and the last order advised that this action would be dismissed if
plaintiff failed to respond.

Because none of those orders was

returned as undeliverable, the Court assumes that plaintiff
received them.

Plaintiff has not offered any explanation for the

failure to respond. Therefore, the Court can only conclude that
the failure is intentional.

An intentional failure to respond to

a court order is sufficient justification for a dismissal.
III.
For the foregoing reasons, the Court recommends that this
action be DISMISSED WITHOUT PREJUDICE for failure to prosecute
pursuant to Fed. R. Civ. P. 41(b).
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that
party may, within fourteen days of the date of this Report, file
and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made,
together with supporting authority for the objection(s).
of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.
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Upon proper

A judge

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to object
to the Report and Recommendation will result in a waiver of the
right to have the district judge review the Report and
Recommendation de novo, and also operates as a waiver of the
right to appeal the decision of the District Court adopting the
Report and Recommendation.

See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

/s/ Terence P. Kemp
United States Magistrate Judge

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