Evans v. Social Security Administration, Commissioner of (TV2)
Filing
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MEMORANDUM AND OPINION - Signed by Chief District Judge Thomas A Varlan on 9/18/2015. (copy mailed)(KMK, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DEBRA EVANS, Pro Se,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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No.:
3:14-CV-422-TAV-HBG
MEMORANDUM OPINION
This civil matter is before the Court on the Report and Recommendation (the
“R&R”) entered by United States Magistrate Judge H. Bruce Guyton on August 25, 2015
[Doc. 18]. In the R&R, Magistrate Judge Guyton recommends that the Court enter an
order dismissing plaintiff’s complaint [Doc. 1] for failure to prosecute, but left it to this
Court’s discretion as to whether the complaint should be dismissed with or without
prejudice. There have been no timely objections to the R&R, and enough time has
passed since the filing of the R&R to treat any objections as having been waived. See 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Rule 41(b) of the Federal Rules of Civil Procedure provides that a claim may be
involuntarily dismissed “[i]f a plaintiff fails to prosecute or to comply with these rules or
a court order,” and that such a dismissal will operate as an adjudication on the merits.
Fed. R. Civ. P. 41(b). While Rule 41(b) includes language that appears to require a
motion by the defendants, the Supreme Court has held that district courts have “inherent
power to dismiss a case sua sponte for failure to prosecute.” Chambers v. NASCO, Inc.,
501 U.S. 32, 48 (1991) (citing Link v. Wabash R. Co., 370 U.S. 626, 630–32 (1962)); see
also Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir. 1980). By inference, a
district court may sua sponte dismiss a case with prejudice for failure to prosecute. The
Sixth Circuit, however, has warned that such a dismissal is a “harsh sanction” that should
only be ordered in situations showing “a clear record of delay or contumacious conduct
by the plaintiff.” Carter, 636 F.2d at 161 (quoting Silas v. Sears, Roebuck & Co., Inc.,
586 F.2d 382, 385 (5th Cir. 1978)).
Additionally, Rule 16(f)(1)(C) of the Federal Rules of Civil Procedure provides
that “[o]n motion or on its own, the court may issue any just orders, including those
authorized by Rule 37(b)(2)(A)(ii)-(vii), if a party . . . fails to obey a scheduling or other
pretrial order.” Fed. R. Civ. P. 16(f)(1)(C). Rule 37(b)(2)(A)(v) of the Federal Rules of
Civil Procedure, as assimilated into Rule 16(f), enables the Court to dismiss an action for
failing to obey one such order. Fed. R. Civ. P. 37(b)(2)(A)(v); see, e.g., Brown v. Colvin,
No. 3:13-CV-0799, 2014 WL 4628519, at *1 (M.D. Tenn. Sept. 15, 2014).
After a careful review of the matter, the Court is in agreement with Magistrate
Judge Guyton’s recommendations, which the Court adopts and incorporates into its
ruling. Plaintiff has established a clear record of delay by not filing a dispositive motion
in the past five months, despite the Court granting plaintiff a ninety day extension of time
to do so.
Accordingly, the Court will ACCEPT IN WHOLE the R&R and will
DISMISS this action [Doc. 18].
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Regarding whether to dismiss with or without prejudice, upon review of the record
and relevant case law and due to plaintiff’s failure to object to the R&R, the Court finds
plaintiff’s complaint [Doc. 1] should be dismissed with prejudice for failure to prosecute
under Rule 41(b) of the Federal Rules of Civil Procedure. In the alternative, the Court
finds plaintiff’s complaint should be dismissed with prejudice under Rule 37(b)(2)(A)(v)
and Rule 16(f)(1)(C) of the Federal Rules of Civil Procedure, for failing to obey the
Court’s Briefing Scheduling [Doc. 12].
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
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