Hatfield v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Robin Hatfield. It isRECOMMENDED that the Court DISMISS Plaintiffs action WITHOUT PREJUDICE. Objections to R&R due by 8/4/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on July 21, 2017. (jlk)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 2:17-cv-76
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers
COMMISSIONER OF SOCIAL
REPORT AND RECOMMENDATION
This matter is before the Court in Plaintiff’s failure to file the required Statement of
Errors and the Court’s May 22, 2017, Show Cause Order. For the reasons that follow, it is
RECOMMENDED that the Court DISMISS Plaintiff’s action WITHOUT PREJUDICE
pursuant to Federal Rule of Civil Procedure 41(b) for failure to prosecute.
On January 26, 2017, the Court granted Plaintiff’s Motion to Proceed Without
Prepayment of Fees, ordering the Commissioner to file and serve her Answer and a certified
copy of the administrative record within sixty days and Plaintiff to file her Statement of Errors
within thirty days after the Answer and transcript were filed. (ECF No. 2.) On April 3, 2017, the
Commissioner filed and served a certified copy of the administrative record. (ECF Nos. 9 and
10.) Thus, Plaintiff’s Statement of Errors was due on or before May 18, 2017.
Because Plaintiff failed to timely file his Statement of Errors, on May 22, 2017, the Court
ordered her to show cause within fourteen days why this case should not be dismissed for failure
to prosecute. (ECF No. 11.) In the Show Cause Order, the Court specifically cautioned Plaintiff
that “failure to comply with [the Show Cause Order] will result in dismissal of Plaintiff’s claims
for failure to prosecute.” (Id.)
Thereafter, Plaintiff responded to the Show Cause Order, which the Court construed as a
motion for extension of time to file her Statement of Errors. (ECF Nos. 12 and 13.) The Court
granted the request for additional time, providing Plaintiff until July 7, 2017, to file the
Statement of Errors. (ECF No. 13.)1 Despite the extension of time, Plaintiff has not filed the
required Statement of Errors.
Under the circumstances presented in the instant case, the Undersigned recommends
dismissal of Plaintiff’s action without prejudice pursuant to Rule 41(b). The Court’s inherent
authority to dismiss a plaintiff’s action because of his or her failure to prosecute is expressly
recognized in Rule 41(b), which authorizes involuntary dismissal for failure to prosecute or to
comply with rules of procedure or court orders. See Fed. R. Civ. P. 41(b); Chambers v. Nasco,
Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the inherent power to
dismiss a case sua sponte for failure to prosecute” as recognized in Link v. Walbash R. Co., 370
U.S. 626, 629–32 (1962)). “This measure is available to the district court as a tool to effect
management of its docket and avoidance of unnecessary burdens on the tax-supported courts and
opposing parties.” Knoll v. AT & T, 176 F.3d 359, 63 (6th Cir. 1999).
The Sixth Circuit directs the district courts to consider the following four factors in
deciding whether to dismiss an action for failure to prosecute under Rule 41(b):
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether
the adversary was prejudiced by the dismissed party’s conduct; (3) whether the
dismissed party was warned that failure to cooperate could lead to dismissal; and
In the same Order, the Court advised Plaintiff that, to the extent that she wished to try and
obtain counsel in this case, she may contact the Columbus Bar Association Lawyer Referral
(4) whether less drastic sanctions were imposed or considered before dismissal
Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008) (citing Knoll, 176
F.3d at 363). “‘Although typically none of the factors is outcome dispositive, . . . a case is
properly dismissed by the district court where there is a clear record of delay or contumacious
conduct.’” Id. (quoting Knoll, 176 F.3d at 363).
Here, the record demonstrates such delay. After Plaintiff failed to file the Statement of
Errors, the Court ordered her to show cause why this case should not be dismissed for prejudice
for want of prosecution. This Order provided Plaintiff with adequate notice of the Court’s
intention to dismiss for failure to prosecute and supplied her with a reasonable period of time to
comply. When Plaintiff responded to the Show Cause Order, the Court provided Plaintiff with
additional time to file the Statement of Errors. The Court also provided Plaintiff with the contact
information for the Columbus Bar Association Lawyer Referral Service in the event Plaintiff
wished to try and obtain counsel. Nevertheless, Plaintiff has continued to fail to file the
Statement of Errors. Because Plaintiff has missed deadlines and disregarded Court orders, the
Undersigned concludes that no alternative sanction would protect the integrity of the pretrial
process. The Undersigned therefore RECOMMENDS that the Court DISMISS Plaintiff’s
action WITHOUT PREJUDICE under Rule 41(b).
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994
(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the
issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).
Date: July 21, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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