Wilson v. Astrue

Filing 26

ORDER signed by Judge Rudolph T Randa on 06/03/2010 granting 21 Motion to Dismiss; denying 25 Motion for Extension of Time. (cc: all counsel; via US Mail to Thomas Wilson) (Koll, J)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN

T H O M A S WILSON, P l a i n t i f f, v. M I C H A E L J. ASTURE C o m m iss io n e r of the Social Security Administration, Defendant. C a s e No. 08-C-890

DECISION AND ORDER

T h is matter is before the Court on the motion to dismiss filed by Defendant M ichael J. Asture, the Commissioner of the Social Security Administration ("Commissioner"), a n d on the motion of pro se Plaintiff Thomas Wilson ("Wilson") for an extension of time to o b ta in counsel to represent him in this action, pursuant to 42 U.S.C. § 405(g), for judicial re v ie w of the Commissioner's denial of his application for disability benefits. The Commissioner seeks dismissal of this action pursuant to Rule 41(b) of the F e d e ra l Rules of Civil Procedure and Civil Local Rule 41(b) for the Eastern District of W is c o n sin .1 Wilson has not filed any response to that motion. Civil Local Rule 41(c), which g o v e r n s motion to dismiss for failure to prosecute, provides:

The Local Rules for the Eastern District of W i s c o n s in were amended on January 26, 2010, and became e ffe c tiv e on February 1, 2010. The amended local rules are available on the District's website, w w w .w i e d . u s c o u r ts .g o v . A copy of the rules will also be provided at no charge by the Office of the Clerk of Court, u p o n request in person or by mail.

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W h e n e v e r it appears to the Court that the plaintiff is not diligently p ro s e c u tin g the action, the Court may enter an order of dismissal w ith or without prejudice. Any affected party may petition for r e in s ta te m e n t of the action within 21 days. D is tric t courts have inherent authority to dismiss a case sua sponte for a plaintiff's failure to p ro s e c u te . Harrington v. City of Chi., 433 F.3d 542, 548 (7th Cir. 2006). A dismissal for lack o f prosecution is appropriate when there is a clear record of delay or contumacious behavior. C a s te e l v. Pieschek, 3 F.3d 1050, 1055 (7th Cir. 1993); Daniels v. Brennan, 887 F.2d 783, 785 (7 th Cir. 1989). No case should be dismissed for failure to prosecute without "explicit warning' o f the potential sanction, but there is no requirement that graduated sanctions be imposed b e f o re dismissing a case for failure to prosecute. Ball v. City of Chi., 2 F.3d 752, 755-56 (7th C ir. 1993). "Ideally, the Court should consider the frequency and magnitude of the plaintiff's f a ilu re to comply with deadlines for the prosecution of the suit, the apportionment of r e sp o n s ib i lity for those failures between the plaintiff and his counsel, the effect of those f a ilu re s on the judge's calendar and time, the prejudice if any to the defendant caused by the p la in tif f 's dilatory conduct, the probable merits of the suit, and the consequences of dismissal f o r the social objectives of the type of litigation that the suit represents." Aura Lamp & L ig h tin g Inc. v. Int'l Trading Corp., 325 F.3d 903, 908 (7th Cir. 2003)(citation omitted). Wilson requested, and was granted multiple extensions of time in this action. The docket also indicates that, his grandmother, Queen Whigham ("Whigham") contacted the C o u rt's staff several times on Wilson's behalf. She was advised that Wilson was required to re q u e s t any needed extensions of time because he could only appear pro se or by counsel. 2

T h e docket in this case discloses that Wilson filed this action on October 21, 2 0 0 8 . He was granted leave to proceed in forma pauperis on November 11, 2008. The Court is s u e d a briefing letter on March 13, 2009, establishing the schedule for this action. On June 16, 2009, the Court granted Wilson's motion for an extension of time to file his brief in support of his action for judicial review. On August 4, 2009, the Court also g ran ted Wilson's motion for an extension of time. Again, on November 10, 2009, the Court g ra n te d Wilson's request for an extension of time to file his brief. On December 11, 2009, Whigham contacted the Court indicating that Wilson w a s attempting to find counsel and could not meet the deadline for filing his brief. Whigham a ls o advised that one attorney had declined to take the case, and that another attorney was re v ie w in g the matter and considering whether to represent Wilson. Although Wilson had not f ile d a motion for an extension of time, on January 14, 2010, the Court entered an order a llo w in g Wilson additional time to file his brief. Thereafter, on February 2, 2010, Wilson filed another motion for extension of tim e . On February 3, 2010, the Court issued an order denying that motion. In that order, the C o u rt noted that it had granted four extensions of time; its January 14, 2010, Order stated that it was allowing a final extension of time for Wilson to file his brief; and, Wilson had provided n o reason for the Court to allow him additional time to file his initial brief. The Court in d ic a te d that the remaining portions of the briefing schedule would govern the action. The Commissioner's motion to dismiss for failure to prosecute followed on M a r c h 9, 2010. Subsequently, because Wilson had not responded to the motion and because

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h e informed the Court that he had been placed in prison, he was given additional time to file a response. Wilson still has not responded to the merits of the motion, but he again requests m o re time to obtain counsel. The file reflects two unsuccessful attempts by Wilson to obtain le g a l representation in this action. Having granted four extensions of time for that purpose and to no avail, the Court declines to allow Wilson more time to obtain counsel. Thus, Wilson's m o tio n for an extension of time is denied. With respect to the Commissioner's motion to dismiss for failure to prosecute, th e Court notes that Wilson is directly responsible for the lack of progress in this action. The m u ltip le orders the Court has issued in this matter reflect both time and effort it has expended. W h ile dismissal of Wilson's appeal asserting the improper denial of his claim for benefits has s o c ia l implications, Wilson has not filed a brief in support of the appeal although having o b tain e d four extensions of time to file his brief. The Court accommodated Wilson's efforts to obtain counsel. However, he was unable to obtain representation. Wilson's inability to o b ta in counsel may be a reflection of a low likelihood of probable success on the merits of the a c ti o n . In sum, having reviewed the file in this matter and upon consideration of the

a p p lic a b le law, this Court concludes this action should be dismissed without prejudice, since the record shows that dismissal for failure to prosecute is an appropriate sanction for Wilson's la c k of diligence in prosecuting this action. Consequently, this action will be dismissed w ith o u t prejudice.

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N O W , THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY O R D E R E D THAT: W ils o n ' s motion for an extension of time is DENIED; T h e Commissioner's motion to dismiss for failure to prosecute Wilson's action f o r judicial review of the Commissioner's decision denying his claim for disability benefits is GRANTED; The Clerk of Court is directed to enter judgment accordingly. Dated at Milwaukee, Wisconsin this 3rd day of June, 2010. BY THE COURT

s / Rudolph T. Randa Hon. Rudolph T. Randa U .S . District Judge

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