Opinion
C. A. 1:23-838-TLW-SVH
03-31-2023
Ricardo Dewalt and Betty Gallman, Plaintiffs, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Shiva V. Hodges United States Magistrate Judge
It appears that Betty Gallman (“Ms. Gallman”) is attempting to bring suit either on behalf of herself and Ricardo Dewalt (“Mr. Dewalt”) (collectively “Plaintiffs”) or on behalf of Mr. Dewalt, against the Commissioner of the Social Security Administration (“Commissioner”). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(e) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge.
The evidence suggests Ms. Gallman is the complainant, but it is unclear whether she is a plaintiff or has merely listed herself in the case caption as filing the case on Mr. Dewalt's behalf. The complaint's caption identifies Ms. Gallman and Mr. Dewalt as plaintiffs. [ECF No. 1 at 1]. The second page of the complaint references “Ricardo D. Dewalt” as plaintiff. Id. at 2. Despite instruction to attach a second page to list additional plaintiffs, Ms. Gallman included no additional page listing herself. See generally ECF No. 1. The spot on the complaint form for “Signature of Plaintiff,” reads “Betty Gallman & Ricardo Dewalt” in the same cursive handwriting. Id. at 5. Ms. Gallman's name is included with the return address on the mailing envelope. [ECF No. 1-1 at 1]. The application to proceed in district court without prepaying fees or costs includes the same signature as the complaint form and states “I take care of him,” suggesting Ms. Gallman signed the form. [ECF No. 2 at 2].
The complaint identifies “Ricardo Dontel Dewalt” as the defendant. Id. at 2. However, the undersigned liberally construes the case as being brought against the Commissioner based on the type of complaint form filed, the minimal factual allegations, and the identification of Mr. Dewalt elsewhere as a plaintiff.
This case was brought by Ms. Gallman on a Social Security complaint form. [ECF No. 1]. The complaint form asks when the complainant received notice that the Commissioner's decision was final. Id. at 3. Instead of identifying a date, Ms. Gallman wrote “Social Security the near me.” Id. In the statement of claim section, she wrote “I sent medical record.” Id. Instead of identifying the Commissioner's error, she wrote “mental, asthma, seizure.” Id. at 4. She checked the area beside “[t]he Commissioner's decision was based on legal error” and wrote: “They didn't seem him see no doctor with Social Security.” Id.
In addition to the complaint, Ms. Gallman filed a motion to proceed in district court without prepaying fees or costs. [ECF No. 2]. It is unclear from review of the motion whether the representations therein are those of Ms. Gallman or Mr. Dewalt.
Pursuant to 28 U.S.C. § 1915, the court construes the application to proceed in district court without prepaying fees or costs as a motion for leave to proceed in forma pauperis. See 28 U.S.C. § 1915.
On March 6, 2023, the undersigned issued an Order and Notice identifying deficiencies in Plaintiffs' complaint and permitting them time to file an amended complaint. [ECF No. 6]. The undersigned contemporaneously issued a proper form order advising Plaintiffs of the requirements that they both sign the complaint form and either pay the court's filing fee or each file an application to proceed in district court without prepaying fees or costs. [ECF No. 7]. Both orders advised Plaintiffs that failure to comply by March 27, 2023, may result in dismissal of the case for failure to prosecute and failure to comply with a court order under Rule 41 of the Federal Rules of Civil Procedure. [ECF Nos. 6 at 10 and 7 at 2].
It is well established that a district court has authority to dismiss a case for failure to prosecute. “The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an ‘inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962). In addition to its inherent authority, this court may also sua sponte dismiss a case for lack of prosecution under Fed.R.Civ.P. 41(b). Id. at 630. Plaintiffs have failed to file an amended complaint or remedy the other deficiencies identified in the proper form order. As such, it appears they wish to abandon this action. Based on the foregoing, the undersigned recommends the court dismiss the case for failure to prosecute. See Davis v. Williams, 588 F.2d 69, 70 (4th Cir. 1978); Fed.R.Civ.P. 41.
The undersigned further recommends the court deny Plaintiffs' motion to proceed in forma pauperis. As explained in the proper form order, to the extent Ms. Gallman was attempting to file a civil action on her own behalf, her motion to proceed in forma pauperis should have included representations as to her financial status and her signature alone. If Mr. Dewalt was intending to file a motion to proceed in forma pauperis, he should have included only his financial representations and signature. See Fed. R. Civ. P. 11(a) (“Every pleading, written motion, or other paper must be signed by . . . a party personally if the party is unrepresented.”).” Id.
For the foregoing reasons, the undersigned suspends the deadline for the Commissioner to file an answer or otherwise plead and recommends the court deny the motion to proceed in forma pauperis and dismiss the matter without prejudice.
At the time of the case's filing and prior to initial review, the Clerk of Court notified the Commissioner of Social Security of the commencement of the action by transmitting a Notice of Electronic Filing (“NEF”) to the appropriate office within the Social Security Administration's Office of General Counsel and to the United States Attorney for the District of South Carolina pursuant to Rule 3 of the Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g). [ECF No. 4]. The NEF indicated an answer was due on May 1, 2023. Id.
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk United States District Court 901 Richland Street Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).