Beard v. United States of America
ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE. Signed by Judge J. Daniel Breen on 11/13/17. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
COMMISSIONER OF SOCIAL SECURITY,
ORDER DISMISSING CASE FOR FAILURE TO PROSECUTE
On January 11, 2017, the Plaintiff, Milton Beard, filed a pro se complaint seeking judicial
review of a decision of the Defendant, Commissioner of Social Security. (Docket Entry (“D.E.”)
1.) In its April 25, 2017 order granting the Plaintiff’s motion to proceed in forma pauperis, the
Court warned Beard that failure to comply with the Court’s requirements, including “any other
order of the Court, may result in the dismissal of the action.” (D.E. 4 at PageID 12.) After the
Commissioner filed an answer on July 14, 2017, (D.E. 7), the Court entered a scheduling order
on July 20, 2017, giving the Plaintiff thirty days to file a brief in support of his claim, (D.E. 8).
After he failed to do so, the Court ordered him to show cause within fifteen days of September
26, 2017, as to why this action should not be dismissed for failure to prosecute pursuant to
Federal Rule of Civil Procedure 41. (D.E. 10.) The Court again cautioned Beard that failing to
respond would result in the dismissal of this case in its entirety. (Id.) As of the date of this
order, no response has been filed.
Rule 41 permits a district court to dismiss an action if a plaintiff fails to prosecute or
comply with court orders. Fed. R. Civ. P. 41(b). While the rule “does not expressly provide for
a sua sponte dismissal . . . it is well-settled that the district court can enter a sua sponte order of
dismissal under Rule 41(b).” Rogers v. City of Warren, 302 F. App’x 371, 375 n.4 (6th Cir.
2008) (citation omitted). “The rule allows district courts to manage their dockets and avoid
unnecessary burdens on both courts and opposing parties.” Shavers v. Bergh, 516 F. App’x 568,
569 (6th Cir. 2013) (per curiam) (citation omitted). Notably, “[a]lthough pro se plaintiffs are
held to less stringent standards than attorneys, cases filed by pro se plaintiffs may still be subject
to dismissal if the plaintiff fails to meet court orders.” Roman v. Comm’r of Soc. Sec., No. 3:11CV-2096, 2012 WL 2026713, at *2 (N.D. Ohio May 18, 2012) (citing Jourdan v. Jabe, 951 F.2d
108, 110 (6th Cir. 1991)), report & recommendation adopted by 2012 WL 2026616 (N.D. Ohio
Jun. 5, 2012).
The Sixth Circuit has articulated four factors to guide district courts in assessing
whether dismissal for failure to prosecute is warranted:
(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) whether the
adversary was prejudiced by the dismissed party’s conduct; (3) whether the dismissed
party was warned that failure to cooperate could lead to dismissal; and (4) whether less
drastic sanctions were imposed or considered before dismissal was ordered.
Crawford v. Beaumont Hosp.-Wayne, No. 17-1305, 2017 WL 4182098, at *2 (6th Cir. Sept. 12,
2017) (quoting Schafer v. City of Defiance Police Dep’t, 529 F.3d 731, 737 (6th Cir. 2008)).
“Although typically none of the factors is outcome dispositive . . . a case is properly dismissed
by the district court where there is a clear record of delay or contumacious conduct.” Marcelino
v. Colvin, No. 3:16-CV-465-TRM-HGB, 2017 WL 1839194, at *2 (E.D. Tenn. Apr. 17, 2017)
(quoting Schafer, 529 F.3d at 737), report & recommendation adopted by 2017 WL 1843212
(E.D. Tenn. May 5, 2017). Applying these factors to the present case, the Court finds that
dismissal pursuant to Rule 41(b) is warranted. Fed. R. Civ. P. 41(b).
As to the first factor, “[w]illfulness, bad faith, or fault is demonstrated when a plaintiff’s
conduct evidences either an intent to thwart judicial proceedings or a reckless disregard for the
effect of his conduct on those proceedings.” Shavers, 516 F. App’x at 570 (internal quotation
marks omitted). A pro se plaintiff’s lack of response following a court warning that such
inaction could result in dismissal evidences his willful failure to prosecute the case. See, e.g.,
Norris v. Comm’r of Soc. Sec., No. 14-13559, 2016 WL 1267101, at *2 (E.D. Mich. Mar. 15,
2016) (finding that the first and third factors favored dismissing a Social Security appeal after the
pro se petitioner failed to respond to two orders to submit court filings, the latter of which
warned that failing to comply could result in the case’s dismissal), report & recommendation
adopted by 2016 WL 1259152 (E.D. Mich. Mar. 31, 2016). In Social Security appeals, this
factor tends to weigh against pro se plaintiffs who do not comply after courts provide a
subsequent “opportunity for compliance.” Rivera v. Comm’r of Soc. Sec., No. 4:16CV2316,
2017 WL 1683660, at *1 (N.D. Ohio Apr. 11, 2017) (indicating that failing to file any court
documents following two court orders to do so amounted to the pro se “plaintiff appear[ing] to
have abandoned her case”), report & recommendation accepted by 2017 WL 1649825 (N.D.
Ohio May 2, 2017); see, e.g., McCoy M.B. v. Comm’r of Soc. Sec., No. 3:15-cv-01284, 2016 WL
3647653, at *1 (N.D. Ohio Jan. 5, 2016), report & recommendation adopted by 2016 WL
3555340 (N.D. Ohio Jun. 30, 2016). Thus, given that Beard disregarded the Court’s scheduling
order, (D.E. 8), and order to show cause, (D.E. 10), the first prong favors dismissal.
“With respect to the second factor . . . ‘[t]he key to finding prejudice . . . is whether the
defendants waste[d] time, money, and effort in pursuit of cooperation which [the plaintiff] was
legally obligated to provide.’” Crawford, 2017 WL 4182098, at *3 (alterations in original)
(quoting Schafer, 529 F.3d at 739). “[A] defendant cannot be expected to invest time, resources
and expenses to defend a case that a plaintiff may have abandoned.” Roman, 2012 WL 2026713,
at *2. “While [a] [d]efendant is not prejudiced by a small delay, [a] [d]efendant should be
afforded a final decision at some time.” Hopkins v. Astrue, No. 03-70455, 2012 WL 3963340, at
*2 (E.D. Mich. Aug. 8, 2012), report & recommendation adopted by 2012 WL 3966246 (E.D.
Mich. Sept. 11, 2012). Accordingly, here, “other than having to compile the administrative
record unnecessarily and to file the briefs in the case,” “there is no great prejudice to the
Commissioner.” Rivera, 2017 WL 1683660, at *1.
The third prong, which the Sixth Circuit described as “a key consideration” in analyzing
whether to dismiss a case under Rule 41(b), has been satisfied, as the Court clearly warned Beard
twice, (D.E. 10; D.E. 4 at PageID 12), that failure to respond could result in dismissal of this
action. Shavers, 516 F. App’x at 570 (quoting Schafer, 529 F.3d at 737); see Rivera, 2017 WL
1683660, at *1 (determining that dismissing the case was “an appropriate sanction” in light of
the fact that “the plaintiff was explicitly warned that failure to file her brief may result in
dismissal with prejudice”).
Regarding the final factor, because the Plaintiff failed to prosecute this case beyond filing
his complaint, (D.E. 1), dismissal is warranted. See Marcelino, 2017 WL 1839194, at *2
(“[D]ismissal is appropriate when a pro se litigant has engaged in a clear pattern of delay.”
(quoting Jourdan, 951 F.2d at 110)); Duvall v. Comm’r of Soc. Sec., No. 2:12-cv-486, 2012 WL
5288125, at *2 (S.D. Ohio Oct. 25, 2012) (explaining that “no alternative sanction would protect
the integrity of the pretrial process” “[b]ecause [the] [p]laintiff has missed deadlines and
disregarded [c]ourt orders”), report & recommendation adopted by 2012 WL 5935950 (S.D.
Ohio Nov. 27, 2012).
“Without a dispositive motion setting forth the alleged errors the
Commissioner has committed in denying his application for benefits, with citation to the record
to support factual allegations . . . the Court cannot undertake a meaningful review of the decision
on appeal.” Marcelino, 2017 WL 1839194, at *2 n.1 (noting “that the [p]laintiff ‘bears the
burden of proving his entitlement to benefits’” (quoting Boyes v. Sec’y. of Health and Human
Servs., 46 F.3d 510, 512 (6th Cir. 1994))); see McCoy M.B., 2016 WL 3647653, at *2 (reasoning
that because “briefing [was] necessary” to adjudicate a pro se Social Security appeal, “a sanction
less than dismissal would not be effective in ensuring resolution of the case”).
Furthermore, “[a]lthough pro se plaintiffs are held to less stringent standards than
attorneys, cases filed by pro se plaintiffs may still be dismissed if the plaintiff fails to meet court
orders.” Rivera, 2017 WL 1683660, at *2 (“[P]ro se litigants are not to be accorded any special
consideration when they fail to comply with straight-forward procedural requirements and
deadlines.” (citing Jourdan, 951 F.2d at 110)). Because Beard has been wholly noncompliant,
despite the Court’s show-cause order, dismissing the case is the only appropriate sanction. (D.E.
In light of the majority of Rule 41(b) factors supporting dismissal, this matter is
DISMISSED without prejudice.
See McCoy M.B., 2016 WL 3647653, at *2 (“[A]lthough
warned that her [c]omplaint may be dismissed with prejudice, considering the fact that [the]
[p]laintiff is proceeding pro se, the [court] concludes that dismissal without prejudice (as a less
drastic sanction than dismissal with prejudice) is warranted.”).
IT IS SO ORDERED this 13th day of November 2017.
s/ J. DANIEL BREEN
UNITED STATES DISTRICT JUDGE
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