Liberto et al v. Berryhill et al

Filing 61

ORDER ADOPTING REPORT AND RECOMMENDATION - IT IS HEREBY ORDERED that 60 Magistrate Judge Arbuckle's Report and Recommendation is adopted; Commissioner's decision is affirmed; final judgment is entered in favor of Defendant and against Plaintiffs; Clerk directed to close this case. Signed by Chief Judge Matthew W. Brann on 11/24/2021. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY MICHAEL LIBERTO, et al.,

No. 4:17-CV-01348
(Chief Judge Brann)

Plaintiffs,

(Magistrate Judge Arbuckle)

v.
KILOLO KIJAKAZI,1
Acting Commissioner of Social Security,
Defendant.
ORDER

NOVEMBER 24, 2021
Jeffrey Michael Liberto and Luisa Liberto (collectively “Plaintiffs”) filed this
action—which they later amended—seeking review of a decision by the Commissioner
of Social Security (“Commissioner”) denying Jeffrey’s claim for supplemental security
income.2 In 2019, Magistrate Judge William I. Arbuckle issued a Report and
Recommendation recommending that this Court affirm the Commissioner’s decision
and close this case.3 This Court adopted the Report and Recommendation and affirmed
the Commissioner’s decision.4
Plaintiffs appealed the Court’s decision and, in May 2020, the United States
Court of Appeals for the Third Circuit issued its mandate in this matter and vacated the

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Pursuant to Federal Rule of Civil Procedure 25(d), Kilolo Kijakazi, as the successor officer to
Nancy Berryhill and Andrew Saul, former Acting Commissioner and Commissioner of Social
Security, respectively, is automatically substituted as Defendant in this action.
Docs. 1, 9.
Doc. 20.
Doc. 21.

Court’s decision.5 Without reaching the merits of this Court’s opinion, the Third Circuit
raised concerns that Jeffrey may not be competent and therefore may not have
knowingly and competently adopted Luisa’s filings on his behalf.6 The Third Circuit
therefore remanded the matter for this Court to “inquire into whether Jeffrey has
knowingly and competently proceeded pro se in this case.”7
On remand, the Court referred this matter back to Magistrate Judge Arbuckle,
who attempted on six occasions to schedule an evidentiary hearing to inquire as to
Jeffrey’s competence.8 The evidentiary hearing was cancelled or rescheduled each time;
the hearing was twice postponed due to COVID-19, but was postponed or cancelled on
four other occasions due to Plaintiffs’ actions. Finally, on November 5, 2021—after
more than one year of fruitless efforts to schedule an evidentiary hearing—Magistrate
Judge Arbuckle issued a Report and Recommendation recommending that this Court
find that Jeffrey is legally competent to proceed in this matter and again affirm the
Commissioner’s decision denying him benefits.9 No timely objections were filed to this
Report and Recommendation.
Where no objection is made to a report and recommendation, this Court will
review the recommendation only for clear error.10 Regardless of whether timely

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Doc. 33.
Doc. 33-2.
Doc. 33-2 at 7.
See Docs. 35, 38, 40, 42, 43, 51.
Doc. 60.
Fed. R. Civ. P. 72(b), advisory committee notes; see Henderson v. Carlson, 812 F.2d 874, 878
(3d Cir. 1987) (explaining that court should in some manner review recommendations
regardless of whether objections were filed).
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objections are made, district courts may accept, reject, or modify—in whole or in part—
the findings or recommendations made by the magistrate judge.11 Upon review of the
record, the Court finds error—clear or otherwise—in Magistrate Judge Arbuckle’s
conclusion that Jeffrey is competent to proceed pro se in this matter. The Court therefore
again affirms the Commissioner’s underlying decision.
As a further matter, the Court notes that Magistrate Judge Arbuckle attempted
several times to schedule an evidentiary hearing, but those efforts were stymied
primarily by Plaintiffs and their intransigence with regard to attending an evidentiary
hearing.12 Any attempts to schedule an evidentiary hearing were dealt a definitive blow
when Plaintiffs first informed the Court that they “do not feel safe in [the] Court” due
to the Court’s purported “bias and hostile comments and actions,”13 and later stated that
they could not attend a hearing in-person, telephonically, or by video because Jeffrey
suffers from “severe meltdowns” when he attends a hearing,14 and Luisa “suffer[s] from
electrical hypersensitivity and hypersensitivity to high frequency sounds” which
“greatly impair[ Luisa’s] ability to function, think clearly, and even speak.”15 Luisa
asserted that, by the end of a brief telephonic conference call with Magistrate Judge

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28 U.S.C. § 636(b)(1); Local Rule 72.31.
See Docs. 35, 38, 40, 42, 43, 51.
Doc. 49 at 2.
This assertion is directly contradicted by Jeffrey’s calm demeanor during a telephone call with
Magistrate Judge Arbuckle. Doc. 60 at 17-18.
Doc. 58 at 1.
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Arbuckle, she “felt so ‘electrified’ [that she] knew there was no way [that she] could
attend another telephone conference or hearing by telephone (or internet).”16
The sum of this behavior indicates to the Court that Plaintiffs have failed to
prosecute this case. The Court will therefore consider, in the alternative, whether to
dismiss Plaintiffs’ complaint pursuant to Fed. R. Civ. P. 41(b). When considering
whether to dismiss a complaint for failure to prosecute, courts should consider:
(1) the extent of the party’s personal responsibility; (2) the prejudice to
the adversary caused by the failure to meet scheduling orders and respond
to discovery; (3) a history of dilatoriness; (4) whether the conduct of the
party or the attorney was willful or in bad faith; (5) the effectiveness of
sanctions other than dismissal, which entails an analysis of alternative
sanctions; and (6) the meritoriousness of the claim or defense.17
With regard to the first factor, Plaintiffs bear sole responsibility for their failure
to prosecute this matter, as it was only they who refused to attend an evidentiary
hearing. Second, Plaintiffs’ failure to prosecute this matter has prejudiced Defendants,
as this matter had dragged on unnecessarily for more than a year without resolution.
Third, Plaintiffs’ actions in this case—stringing the matter along and requesting a
telephonic hearing before ultimately rejecting a telephonic hearing for patently
unbelievable reasons—demonstrates a history of dilatoriness. Fourth, given the ample
leeway that Magistrate Judge Arbuckle provided Plaintiffs and the extraordinary efforts
that he took to ensure that they could attend an evidentiary hearing, the Court concludes
that Plaintiffs’ failure to attend an evidentiary hearing is willful.

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Id. at 1-2.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984) (emphases omitted).
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Fifth, because Plaintiffs are proceeding pro se and in forma pauperis,18 no
sanction other than dismissal would be effective.19 Finally, the Court has already
concluded that Plaintiffs’ claims are without merit. Accordingly, all six factors weigh
in favor of dismissing Plaintiffs’ complaint with prejudice, even if the Court did not
enter judgment in favor of the Commissioner on the merits of this case. Consequently,
IT IS HEREBY ORDERED that:
1.

Magistrate Judge William I. Arbuckle’s Report and Recommendation
(Doc. 60) is ADOPTED;

2.

The Commissioner’s decision is AFFIRMED;

3.

Final Judgment is entered in favor of Defendant and against Plaintiffs
pursuant to Fed. R. Civ. P. 58 and sentence four of 42 U.S.C. § 405(g);
and

4.

The Clerk of Court is direct to CLOSE this case.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
Chief United States District Judge

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Doc. 5.
Briscoe v. Klem, 538 F.3d 252, 262-63 (3d Cir. 2008).
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