Cox v. Berryhill

Filing 38

ORDER dismissing the action with prejudice for lack of prosecution. Signed by Magistrate Judge Paige J. Gossett on 03/28/2018. (bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John Dillon Cox,

)
)
Plaintiff,
)
)
v.
)
)
Nancy A. Berryhill, Acting Commissioner of )
Social Security,
)
)
Defendant.
)
_____________________________________ )

C/A No. 0:17-2623-PJG

ORDER

This social security action is before this court pursuant to 42 U.S.C § 405(g) for review of
a final decision of the Commissioner of the Social Security Administration (“Commissioner”). The
plaintiff, John Dillon Cox, who is now proceeding pro se,1 initiated this action and filed his
Complaint on April 11, 2017. (ECF No. 2.) The Commissioner filed an Answer along with a
transcript of record on October 11, 2017. (ECF Nos. 16 & 17.)
The Local Rules of this District state that, after the filing of an answer, a plaintiff has thirty
(30) days in which to file a written brief. Local Civil Rule 83.VII.04 (D.S.C.). The plaintiff’s brief
was initially due on or before November 13, 2017. The plaintiff moved for and was granted multiple
extensions of time, the latest of which extended his time to file a brief until March 23, 2018. The
plaintiff was specifically warned that if he failed to respond, this action may be dismissed with
prejudice for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed. R.
1

Cox was represented by counsel when his Complaint was initially filed in the Western
District of Virginia. However, when the case was transferred to the District of South Carolina, Cox
was directed to obtain counsel who was admitted to practice in this district. (See ECF No. 20.) Cox
did so; however, his attorney subsequently moved for and was granted leave to withdraw as counsel.
(ECF Nos. 32 & 34.) Cox was given the opportunity to obtain new counsel, but elected to proceed
pro se. (See ECF No. 34.)
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Civ. P. 41(b). As of the date of this Order, the plaintiff has not filed a brief and has presented no
argument as to why the decision by the Commissioner is not supported by substantial evidence.
Therefore, the plaintiff meets all of the criteria for dismissal under Chandler Leasing Corp. v. Lopez,
669 F.2d 919 (4th Cir. 1982).
Accordingly, it is hereby
ORDERED that this action be dismissed with prejudice for lack of prosecution. See Davis,
588 F.2d at 70; Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (stating that magistrate judge’s
prior explicit warning that a recommendation of dismissal would result from the plaintiff failing to
obey his order was proper grounds for the district court to dismiss the suit when the plaintiff did not
comply despite the warning), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084
(1990); Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.

___________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
March 28, 2018
Columbia, South Carolina

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