Opinion
C/A No.: 1:19-2362-JMC-SVH
01-23-2020
Wendell E. Hughes, Plaintiff, v. Andrew M. Saul, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for Disability Insurance Benefits ("DIB"). Pursuant to Local Civ. Rule 73.02(B)(2)(a) (D.S.C.), the undersigned is authorized to review such complaints for relief and submit findings and recommendations to the district judge. For the following reasons, the undersigned recommends the district judge dismiss the case with prejudice.
Plaintiff filed his complaint on August 21, 2019. [ECF No. 1]. The Commissioner filed an answer and the administrative record of the underlying proceedings on December 23, 2019. [ECF Nos. 8, 9]. Pursuant to Local Civ. Rule 83.VII.04 (D.S.C.), Plaintiff's brief was due on January 22, 2020. Plaintiff has neither requested an extension nor filed a brief in this matter.
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.
In light of Plaintiff's failure to file a brief, the undersigned concludes Plaintiff does not intend to pursue the above-captioned matter. Accordingly, the undersigned recommends this action be dismissed with prejudice for failure to prosecute pursuant to Fed. R. Civ. P. 41.
Should Plaintiff notify the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and the district judge reject the recommendation, the undersigned recommends any attorney fees potentially payable to Plaintiff's counsel as a result of this action be reduced based his record of disregard for the court's deadlines. The court may reduce an attorney's contingent fee from the agreed-upon amount if "counsel's delay caused past-due benefits to accumulate 'during the pendency of the case in court.'" Mudd v. Barnhardt, 418 F.3d 424, 427 (4th Cir. 2005) (citing Gisbrecht v. Barnhardt, 535 U.S. 789, 808 (2002).
Since January 2019, Plaintiff's counsel has failed to timely file briefs in at least seven other cases assigned to the undersigned United States Magistrate Judge. See Gregory v. Saul, C/A No. 1:18-1834-MBS-SVH (D.S.C.); Holloway v. Saul, C/A No. 1:18-1828-DCN-SVH (D.S.C.), Quinones v. Saul, C/A No. 1:18-3561-BHH-SVH (D.S.C.), Hardee v. Saul, C/A No. 1:19-428-DCN-SVH (D.S.C.); Foster v. Saul, C/A No. 1:19-707-RBH-SVH (D.S.C.); Tedder v. Saul, C/A No. 1:19-1399-DCC-SVH (D.S.C.); Edwards v. Saul, C/A No. 1:19-1282-RBH-SVH (D.S.C.). In two of those cases, Plaintiff's counsel failed to comply with orders informing him that failure to file briefs by revised final deadlines may result in the cases being recommended for dismissal with prejudice for failure to prosecute. Gregory, C/A No. 1:18-1834-MBS-SVH at ECF Nos. 16, 18; Holloway, C/A No. 1:18-1828-DCN-SVH at ECF Nos. 16, 18. In light of Plaintiff's counsel's flagrant disregard for the court's deadlines, the undersigned recommends the court reduce any future attorney fees payable to him in this case.
IT IS SO RECOMMENDED. January 23, 2020
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
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).