Opinion
No. SA-03-CA-1175-RF.
June 7, 2005
ORDER ADOPTING MEMORANDUM AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge John Primomo, entered on May 27, 2004. The Magistrate Judge recommended that Plaintiff's lawsuit be dismissed without prejudice for failure to prosecute, after Plaintiff failed to file a brief or provide an explanation for her failure to do so. The Plaintiff did not file objections to the Memorandum and Recommendation during the response period permitted by Local Rule, nor did she request leave to file late objections. After due consideration, the Court is of the opinion that the Magistrate Judge's Memorandum and Recommendation should be ADOPTED IN ITS ENTIRETY.
The Court reviews de novo a Magistrate Judge's Report and Recommendation if a party files specific objections within ten days of service. If there are no specific objections to a Magistrate Judge's r, the District Court merely reviews it for findings and conclusions that are either clearly erroneous or contrary to law. In the instant case, Plaintiff did not file objections to the Magistrate Judge's Memorandum and Recommendation. Thus, the Court reviews the Memorandum and Recommendation for conclusions that are clearly erroneous or contrary to law.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
Plaintiff, Gloria E. Ramos, filed a lawsuit pro se pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking review of the determination by Social Security Administration Commissioner Jo Anne B. Barnhart, denying eligibility for disability insurance benefits. The Magistrate Judge directed Plaintiff to file a brief by April 5, 2004, and sua sponte granted her an extension to April 30, 2004. The Magistrate Judge also informed Plaintiff that her failure to timely file a brief would result in dismissal of this lawsuit. No further action has been taken by Plaintiff, nor has any explanation been given for her lack of response over several months.
Docket No. 14
In the instant case, a dismissal is warranted under Rule 41(b), which provides that unless otherwise specified by the Court, a dismissal for failure to comply with court orders operates as an adjudication on the merits. A district court's dismissal of an action for failure to prosecute helps prevent undue delay in the disposition of pending cases. An adjudication on the merits would be a dismissal with prejudice, which the Magistrate Judge rejected due to the extremity of the sanction. This Court agrees that dismissal with prejudice is too extreme a sanction in this case. Dismissal with prejudice is used only when the plaintiff's conduct has threatened the integrity of the judicial process. Such conduct must show: 1) A clear record of delay or contumacious conduct by the plaintiff, and 2) no lesser sanction which would better serve the interests of justice. There is no such record of delay by the Plaintiff in this case, and the lesser sanction of dismissal without prejudice is available and more appropriate. It is not an adjudication on the merits and leaves the parties in the same legal position as if no suit had ever been filed.
McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1996).
Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996).
McNeal, 842 F.2d at 793
Hilbun v. Goldberg, 823 F.2d 881, 883 (5th Cir. 1987).
Because Plaintiff has not displayed the type of behavior warranting a dismissal with prejudice, and because she is indigent thus making monetary sanctions ineffective, dismissal without prejudice is the most appropriate sanction. The Court has reviewed the complete file, as well as the Magistrate Judge's Memorandum and Recommendation of dismissal without prejudice. Finding the Memorandum and Recommendation to be neither erroneous nor contrary to law, the Court will adopt the Memorandum and Recommendation in its entirety. Accordingly, the Court ORDERS that the Memorandum and Recommendation be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Plaintiff's cause be DISMISSED WITHOUT PREJUDICE.
FINAL JUDGMENT
On this day, the Court entered an Order adopting the Memorandum and Recommendation of the United States Magistrate Judge recommending to dismiss Plaintiff's complaint without prejudice. The Court now enters its Final Judgment pursuant to Federal Rule of Civil Procedure 58.Accordingly, IT IS HEREBY ORDERED that the Memorandum and Recommendation of the United States Magistrate Judge be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Plaintiff's case be DISMISSED WITHOUT PREJUDICE.
It is further ORDERED that the Clerk close the above styled and numbered cause.