Channing v. Berryhill

Filing 8

ORDER adopting 4 Report and Recommendations and dismissing Plaintiff's 1 Complaint without prejudice. So Ordered by Chief Judge William E. Smith on 4/26/2018. (Jackson, Ryan)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL, ACTING
)
COMMISSIONER OF THE SOCIAL
)
SECURITY ADMINISTRATION,
)
)
Defendant.
)
___________________________________)
FREDERICK CHANNING,

C.A. No. 17-461 WES

ORDER
WILLIAM E. SMITH, Chief Judge.
Magistrate
Recommendation

Judge

Lincoln

(“R&R”)

on

D.

Almond

February

21,

filed
2018

a

Report

(ECF

No.

and
4),

recommending that the Court dismiss Plaintiff’s Complaint (ECF
No. 1) without prejudice for failure to respond to the Court’s
January 10, 2018 Order To Show Cause (ECF No. 3) and for lack of
diligent prosecution pursuant to LR Cv 41.
Almond’s

recommendation

resulted

from

Magistrate Judge

Plaintiff’s

failure

to

file proof of service with the Court, and his subsequent failure
to respond to the Order To Show Cause as to why the case should
not be dismissed for failure to file proof of service.
Although Plaintiff filed an objection to the R&R (ECF No.
6), he failed to respond to Magistrate Judge Almond’s reasons
for recommending dismissal.

Instead, Plaintiff provided proof

that he completed service on January 3, 2018.
Serv., Ex. 1, ECF No. 6-1.)

(See Aff. of

However, Plaintiff’s opportunity to

provide proof of service has long since passed; his failure to
substantively
right

to

object

review

by

Court’s decision.

to

the

this

R&R

Court

constitutes
and

any

a

right

waiver
to

of

any

appeal

the

Garayalde-Rijos v. Municipality of Carolina,

747 F.3d 15, 21-22 (1st Cir. 2014); see also Fed. R. Civ. P.
72(b)(2); LR Cv 72(c)(1).
Accordingly, after carefully reviewing the relevant papers,
the

Court

Plaintiff’s

ACCEPTS

in

Complaint

its
(ECF

entirety
No.

without prejudice.

IT IS SO ORDERED.

William E. Smith
Chief Judge
Date: April 26, 2018

2

1)

the
is,

R&R

(ECF

therefore,

No.

4).

dismissed

Case 1:17-cv-00461-WES-LDA Document 4 <font color=teal>(Case Participants)</font>
Filed 02/21/18 Page 1 of 2 PageID #: 19

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND

FREDERICK CHANNING
v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration

:
:
: C.A. No. 17-0461-WES
:
:
:
:

REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge

This Social Security Appeal was initiated by counsel on October 5, 2017. It was direct
assigned to me per Local Rule Gen. 105(a)(4).1 On January 10, 2018, I issued an Order to Show
Cause since this case had been pending over ninety days without proof of service having been
filed by Plaintiff. (ECF Doc. No. 3). Plaintiff was ordered to respond in writing to the Order to
Show Cause by January 31, 2018 or the case would be dismissed for lack of diligent prosecution.
No response was filed. Accordingly, I recommend that this case be DISMISSED without
prejudice for failure to respond to the Court’s January 10, 2018 Order to Show Cause and for
lack of diligent prosecution.
Any objection to this Report and Recommendation must be specific and must be filed
with the Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv
72. Failure to file specific objections in a timely manner constitutes waiver of the right to review
by the District Court and the right to appeal the District Court’s decision. See United States v.

1

Absent service and the appearance of Defendant, the standard consent forms were never issued. Thus, the
required Party Consent to Magistrate Judge Assignment has not been obtained.

Case 1:17-cv-00461-WES-LDA Document 4 <font color=teal>(Case Participants)</font>
Filed 02/21/18 Page 2 of 2 PageID #: 20

Valencia-Copete, 792 F.2d 4, 6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616
F.2d 603, 605 (1st Cir. 1980).

/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
February 21, 2018

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