Opinion
6:21-cv-01190 (TWD)
07-18-2022
JAMES W., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
JAMES W. Plaintiff, pro se U.S. SOCIAL SECURITY ADMIN OFFICE OF THE GENERAL COUNSEL RONALD W. MAKAWA Special Assistant U.S. Attorney
JAMES W. Plaintiff, pro se
U.S. SOCIAL SECURITY ADMIN OFFICE OF THE GENERAL COUNSEL
RONALD W. MAKAWA Special Assistant U.S. Attorney
DECISION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
Currently before the Court, in this action filed by James W. (“Plaintiff”) seeking judicial review of a final decision of the Commissioner of Social Security (“Defendant” or the “Commissioner”) pursuant to 42 U.S.C. § 405(g), is Defendant's unopposed motion to dismiss based upon pro se Plaintiff's failure to prosecute. (Dkt. No. 15.) For reasons discussed below, the motion is granted.
Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a Magistrate Judge. (Dkt. Nos. 5, 6.)
I. PROCEEDINGS TO DATE
On November 1, 2021, Plaintiff commenced this action by filing a complaint, along with an application to proceed in forma pauperis (“IFP”). (Dkt. Nos. 1, 3.) The Clerk provided Plaintiff with a copy of the Court's Pro Se Handbook, Local Rules, and Notice, along with General Order 18, which sets forth the procedures to be followed when appealing a denial of Social Security benefits. (Dkt. Nos. 4, 5.) On November 2, 2021, the Court granted Plaintiff's IFP application. (Dkt. No. 9.)
On January 31, 2012, the Commissioner filed the Certified Administrative Record and Transcript (“Record”) and served the Record on Plaintiff as directed by the Court. (Dkt. Nos. 10, 11.) As such, Plaintiff's brief was due by March 17, 2022. (See Dkt. Nos. 10, 12.)
When Plaintiff's brief was not received by the due date, the Court issued a Text Order on March 21, 2022, which sua sponte extended Plaintiff's deadline to file his brief to April 22, 2022. (Dkt. No. 13.) Plaintiff was advised that his failure to submit a brief may result in consideration of the Record without Plaintiff's arguments and further warned this action may be dismissed with prejudice for failure to prosecute. Id.
Thereafter, when Plaintiff again did not file his brief by the extended deadline as directed, the Court issued a Text Order directing Defendant to file a motion to dismiss pursuant to Rule 41(b) of the Federal Rules of Civil Procedure and General Order 18. (Dkt. No. 14.)
On April 29, 2022, Defendant filed the pending motion to dismiss based on Plaintiff's failure to prosecute this action. (Dkt. No. 15.) Plaintiff was directed to file his response to Defendant's motion by May 20, 2022, and was warned that his failure to respond would result in dismissal of the action. (Dkt. No. 16.) To date, Plaintiff had not filed anything or otherwise communicated with the Court.
II. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure states that, “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claims against it.” Fed.R.Civ.P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). Courts have also recognized that Rule 41(b) does not abrogate a district court's inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). However, “[d]ismissal is a harsh remedy and is appropriate only in extreme situations,” and “district courts should be especially hesitant to dismiss for procedural deficiencies where . . . the failure is by a pro se litigant.” Saundvallee B. v. Berryhill, No. 5:17-CV-0867, 2019 WL 2210595, at *1 (N.D.N.Y. May 22, 2019) (citing Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996)).
It is also well-settled that the term “these rules” in Rule 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). In Social Security cases, General Order 18, under the heading “ NOTIFICATION OF THE CONSEQUENCES OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C. (1)(A-D) ” (emphasis in original), provides that an “[a]ction may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief.” (Dkt. No. 5.)
A court considering a Rule 41(b) dismissal must weigh five factors:
(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing
of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.Lucas, 84 F.3d at 535 (citations omitted). No singular factor is dispositive. Nita v. Connecticut Dep't of Environmental Protection, 16 F.3d 482, 485 (2d Cir. 1994).
First, Plaintiff has taken no action in this case beyond filing the complaint on November 1, 2021. His brief was initially due by March 17, 2022, four months ago. Nonetheless, he did not file a motion. The Court then extended the deadline to April 22, 2022. Again, Plaintiff did not file anything. Nor has Plaintiff responded to the pending motion to dismiss, and the time to do so has passed. Local Rule 41.2(a) states that “the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution.” L.R. 41.2(a). Accordingly, the first factor weighs in favor of dismissal. See, e.g., Ortega v. Apfel, 5 Fed.Appx. 96, 97 (2d Cir. 2001) (affirming dismissal for failure to prosecute where “[t]he record reveal[ed] that, beyond filing his complaint . . . [plaintiff] took no action to prosecute his case”); see also Lopez v. Catholic Charities of Archdiocese of N.Y., No. 00-CV-1247, 2001 WL 50896, at *3 (S.D.N.Y. Jan. 22, 2001) (dismissing under Rule 41(b) where “plaintiff has failed to take any steps to prosecute this action for at least three months”).
Second, Plaintiff was warned that his failure to file a brief and/or respond to the pending motion would result in dismissal of the action with prejudice. (Dkt. Nos. 13, 16.) “The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.” See Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) (“citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) (“A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal.”). Thus, the second factor weighs in favor of dismissal.
Third, “while the prejudice to [D]efendant and the burden on the Court are currently minimal, [P]laintiff's delay ‘lean[s] in the direction of dismissal' even if ‘only slightly.'” Rozell v. Berryhill, No. 18-CV-969, 2019 WL 1320514, at *2 (S.D.N.Y. Mar. 25, 2019) (quoting LeSane v. Hall's Sec. Analyst, Inc., 239 F.3d 206, 210 (2d Cir. 2001)); see also Lomack v. Comm'r of Soc. Sec., No. 18-CV-6083, 2019 WL 132741, at *2 (W.D.N.Y. Jan. 8, 2019) (“The Commissioner has an interest in the timely resolution of this case, as the Social Security Administration is significantly overburdened with applications and appeals.”). Nothing of substance has been completed in this case since the filing of the Record on January 31, 2022. See Caussade v. U.S., 293 F.R.D. 625, 630 (S.D.N.Y. 2013) (“Where a [p]laintiff has become inaccessible for months at a time, courts presume prejudice.”) (citations omitted); see also Rubin v. Abbott Labs., 319 F.R.D. 118, 121 (S.D.N.Y. 2016) (finding “calendar congestion” outweighs a plaintiff's opportunity to be heard when the plaintiff has rebuffed opportunities to be heard). Moreover, Plaintiff has failed repeatedly to respond to Court orders or otherwise indicate that he intends to prosecute this case.
Fourth, “although the Court recognizes Plaintiff's interest in receiving a fair chance to be heard, it must also consider the heavy demands of its docket, especially in the Social Security context.” Mannan v. Soc. Sec. Admin., No. 17-CV-6800, 2020 WL 2329282, at *2 (E.D.N.Y. May 11, 2020). Plaintiff has yet to participate in the Court-ordered briefing, or otherwise indicate that he intends to prosecute this case. Defendant has moved to dismiss, and Plaintiff failed to respond. See, e.g., Idlet v. Comm'r of Soc. Sec., No. 18-CV-05183, 2020 WL 3403108, at *6 (E.D.N.Y. June 19, 2020) (finding the plaintiff's inaction had “unnecessarily burdened the court's work by requiring the court to continually monitor the docket and order plaintiff to prosecute the case”). It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of other cases, and that contributes to the Second Circuit's relatively long median time to disposition for Social Security cases.
Finally, the Court has carefully considered sanctions less drastic than dismissal of Plaintiff's complaint and finds them to be inadequate under the circumstances. See Smith v. Human Res. Admin. of N.Y.C., No. 91-CV-2295, 2000 WL 307367, at *3 (S.D.N.Y. Mar. 24, 2000) (“[L]esser sanctions are not appropriate in this case [because] [c]ourt orders and direction have not prompted plaintiff to move her case forward.”). Additionally, Plaintiff is proceeding IFP, therefore “rendering monetary sanctions inappropriate.” Id.
In sum, the Court has given Plaintiff opportunities to be heard and pursue his Social Security appeal, but he has refused to prosecute this action and respond to the Court's Orders. Therefore, after carefully considering the foregoing factors, the Court finds dismissal of Plaintiff's complaint with prejudice is warranted.
WHEREFORE, it is hereby
ORDERED that Defendant's motion to dismiss (Dkt. No. 15) is GRANTED, Plaintiff's complaint (Dkt. No. 1) is DISMISSED WITH PREJUDICE for failure to prosecute; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Decision and Order on Plaintiff in accordance with the Local Rules, along with copies of the unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). The Clerk of the Court is directed to enter judgment for Defendant and close this action.
IT IS SO ORDERED.