Toms v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Howard L Toms, III - Therefore, the undersigned RECOMMENDS that this case be DISMISSED pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. Objections to R&R due by 10/25/2018. Signed by Magistrate Judge Michael J. Newman on 10/11/18. (pb)(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
WESTERN DIVISION AT DAYTON
HOWARD L. TOMS,
Plaintiff,

Case No. 3:18-cv-169

vs.
COMMISSIONER OF SOCIAL SECURITY,

District Judge Walter H. Rice
Magistrate Judge Michael J. Newman

Defendant.

REPORT AND RECOMMENDATION1

This is a Social Security disability appeal filed by pro se Plaintiff. The Commissioner
appeared in the case by filing the Administrative Record on August 3, 2018. Pro se Plaintiff was
required to file his Statement of Errors within 48 days after service of the Administrative Record.
See S.D. Ohio Civ. R. 8.1(b) (requiring that the Statement of Errors be filed within 45 days after
service of the administrative record); see also Fed. R. Civ. P. 6(d) (permitting an additional 3 days
to act when served by regular mail).
When pro se Plaintiff failed to file his Statement of Errors within the required time, the
Court, acting sua sponte, issued a Show Cause Order directing him to show cause or to otherwise
file the Statement of Errors within 14 days, i.e., on or before October 9, 2018. See doc. 10. Plaintiff
was also notified that his failure to comply with the terms of the Show Cause Order could result
in the dismissal of his Social Security disability appeal for failure to prosecute. See id. Despite
the foregoing, Plaintiff failed to show cause or otherwise file his Statement of Errors as ordered

1

Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.

and the time for doing so has expired. Therefore, the undersigned RECOMMENDS that this case
be DISMISSED pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
IT IS SO ORDERED.

Date:

October 11, 2018

s/ Michael J. Newman
Michael J. Newman
United States Magistrate Judge

NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections
to the proposed findings and recommendations within FOURTEEN days after being served with
this Report and Recommendation. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to
SEVENTEEN days because this Report and Recommendation is being served by one of the
methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F), and may be extended further
by the Court on timely motion for an extension. Such objections shall specify the portions of the
Report and Recommendation objected to, and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendation is based in whole or in part upon
matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may respond
to another party’s objections within FOURTEEN days after being served with a copy thereof. As
is made clear above, this period is likewise extended to SEVENTEEN days if service of the
objections is made pursuant to Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Failure to make
objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474
U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).1