Opinion
CIVIL NO. 3:19-CV-0930
11-19-2019
JAMES J. BENNEK, Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant
(Judge Mannion) ()
REPORT AND RECOMMENDATION
The pro se plaintiff filed this action pursuant to Section 205(b) of the Social Security Act on May 30, 2019. The action is currently before the court on an appeal pursuant to Section 205(g) to review a final administrative determination of the Secretary of Health and Human Services, denying Plaintiff's claim for a period of disability benefits.
A Standing Practice Order for Social Security review cases was issued on May 31, 2019. (Doc. 4). The order states that the defendant shall serve and file an answer within sixty (60) days of the service of the complaint. Defendant filed an answer and transcript on August 16, 2019. (Docs. 8 and 9).
The Standing Practice Order further directs the plaintiff to serve and file a brief supporting the plaintiff's complaint within forty-five (45) days of the filing of the defendant's answer. Said brief was to have been filed by October 1, 2019. Plaintiff's failure to file the brief or request an extension of time to do so resulted in the issuance of an Order on October 10, 2019, affording him until October 30, 2019, to file his brief. (Doc. 12).
Plaintiff failed to file his brief by October 30, 2019. In recognition of his pro se status, the Court issued an Order on November 7, 2019, affording him a final opportunity to file his brief and advising him that his failure to do so would result in a recommendation of dismissal. (Doc. 13).
Apparently in response to our Doc. 13 Order, on November 15, 2019, plaintiff submitted to the Court's website (Consents@pamd.uscourts.gov) an email which stated, "I James Bennek can not find a (sic) attorney too (sic) represent me so I'm going too (sic) drop my appeal as I don't know how too (sic) write a brief." (Doc. 14).
Under Rule 41(a)(2) of the Federal Rules of Civil Procedure, "an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper."
We shall construe plaintiff's filing of November 18, 2019 (Doc. 14) as a Notice of Dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure and shall recommend that this case be dismissed without prejudice.
Therefore, in accordance with the foregoing, it is respectfully recommended as follows:
1. Plaintiff's Doc. 13 filing be construed as a Notice of Dismissal under Rule 41(a)(2) of the Federal Rules of Civil Procedure.
2. This action be dismissed without prejudice. Dated: November 19, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated November 19, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall filed with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.
s/ Joseph F. Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge Dated: November 19, 2019