Robinson v. Astrue

Filing 28

ORDER adopting 27 Report and Recommendations, and dismissing complaint with prejudice. Signed by Judge Samuel H. Mays, Jr on 12/21/2017. (Mays, Samuel)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

BRENDA ROBINSON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

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No. 11-cv-2195-SHM-tmp

ORDER

Before the Court is the Magistrate Judge’s Report and
Recommendation, dated December 4, 2017 (the “Report”).
No. 27.)

(ECF

The Report recommends that Plaintiff Brenda

Robinson’s complaint seeking judicial review of a final
decision of the Commissioner of the Social Security
Administration be dismissed with prejudice under Federal Rule
of Civil Procedure 41(b).

Robinson has not filed objections to

the Report, and the deadline for doing so has passed.

L.R.

72.1(g)(2).
For the following reasons, the Report is ADOPTED and
Robinson’s complaint is DISMISSED with prejudice.
On March 16, 2011, Robinson filed her Complaint for Review
of Decision of the Social Security Administration, alleging

that the final decision of the Commissioner of the Social
Security Administration denied her claim for Supplemental
Social Security Income benefits under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381, et seq.

(ECF No. 1.) The

Commissioner moved to remand for further administrative
proceedings under sentence six of 42 U.S.C. § 405(g).
14.)

(ECF No.

On October 4, 2011, the motion to remand was granted.

(ECF No. 15.)

The subsequent administrative proceedings ended

in an unfavorable decision for Robinson.

(ECF No. 20.)

The Commissioner filed an answer in this proceeding on
July 28, 2017.
case.

(ECF No. 19.)

The Court then reopened the

(ECF No. 20.)

On August 4, 2017, an attorney with the law firm that
represented Robinson initially moved to withdraw, representing
that Robinson’s attorney had withdrawn his and his firm’s
representation in 2012.

(ECF No. 23.)

motion to withdraw the same day.

The Court granted the

(ECF No. 24.)

On October 19, 2017, United States Magistrate Judge Tu M.
Pham opined that “it appears that Robinson is now appearing pro
se – and has been pursuing her case as a pro se plaintiff since
shortly after her case was remanded in October 2011,” and that
“it appears that Robinson is currently incarcerated, and her
address of record is incorrect.”
2

(ECF No. 25 at 393.) Having

determined that Robinson might not have received notice of the
scheduling order, the Magistrate Judge ordered the Clerk of
Court to send notification to Robinson’s address of record and
to the Tennessee Prison for Women in Nashville.
94.)

(Id. at 393-

The Magistrate Judge also amended the scheduling order,

giving Robinson until December 1, 2017, to respond to the
Commissioner’s answer.

(Id. at 394.)

The Magistrate Judge

warned that Robinson’s failure to comply would result in
dismissal of her case with prejudice.

(Id.)

On December 4, 2017, the Magistrate Judge entered the
Report.

(ECF No. 26.)

The Report recommends that the action

be dismissed with prejudice under Federal Rule of Civil
Procedure 41(b).

The Report explains that:

The Sixth Circuit considers four factors in
reviewing the decision of a district court to dismiss
a case for failure to prosecute:
(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.
Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir.
2005) (citing Knoll, 176 F.3d at 363).
Based on
these factors, the undersigned submits that dismissal
of Robinson’s complaint is appropriate.
Robinson has not, as required, kept the court
informed of her current address. See, e.g. Watsy v.
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Richards, No. 86-1856, 1987 WL 37151 (6th Cir. Apr.
20, 1987) (holding that a Rule 41(b) dismissal is
appropriate when a pro se litigant fails to provide
the court with information regarding her current
address).
Also, “the fact that a plaintiff is
incarcerated
does
not
absolve
him
of
the
responsibility to prosecute his lawsuit in a diligent
manner.”
Harbison v. Thompson, No. 3:14-cv-0409,
2017 WL 395003 (M.D. Tenn. Jan. 30, 2017) (citing
Snavley v. Redman, 107 F.R.D. 346 (E.D. Mich. 1985)).
Regarding the first and second factors, while “it is
not clear whether plaintiff’s failure to prosecute is
due to willfulness, bad faith, or fault, . . .
defendants cannot be expected to defend an action”
that plaintiff has “apparently abandoned.” White v.
Bouchard, No. 05-73718, 2008 WL 2216281, at *5 (E.D.
Mich. May 27, 2008).
Accordingly, the first and
second factors weigh in favor of dismissal.
The
third factor is satisfied because the record shows
that Robinson was warned that her claim could be
dismissed if she did not abide by the orders of the
court.
Because she has failed to keep the court
updated on her current address and has not taken any
action since the case was reopened, Robinson has
effectively abandoned her case.
As for the fourth
factor, while less drastic measures were considered,
the
court
finds
that,
under
the
present
circumstances, no sanction short of dismissal will
cure plaintiff’s failure to prosecute this matter.
(Id. at 400-01.)
Congress enacted 28 U.S.C. § 636 to relieve the burden on
the federal judiciary by permitting the assignment of districtcourt duties to magistrate judges.

See United States v.

Curtis, 237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v.
United States, 490 U.S. 858, 869-70 (1989)); see also Baker v.
Peterson, 67 F. App’x 308, 310 (6th Cir. 2003).

For

dispositive matters, “[t]he district judge must determine de
novo any part of the magistrate judge’s disposition that has
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been properly objected to.”
U.S.C. § 636(b)(1).

See Fed. R. Civ. P. 72(b)(3); 28

After reviewing the evidence, the court is

free to accept, reject, or modify the magistrate judge’s
proposed findings or recommendations.

28 U.S.C. § 636(b)(1).

The district court is not required to review -- under a de novo
or any other standard -- those aspects of the report and
recommendation to which no objection is made.
474 U.S. 140, 150 (1985).

Thomas v. Arn,

The district court should adopt the

magistrate judge’s findings and rulings to which no specific
objection is filed.

Id. at 151.

Robinson has not objected to the Report.
should be adopted.

The Report

See Arn, 474 U.S. at 150-51.

For the foregoing reasons, the Report is ADOPTED and
Robinson’s complaint is DISMISSED with prejudice.

So ordered this 21st day of December, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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