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Hairston v. Commissioner of Social Security, 1:17CV0151. (2017)

Court: District Court, N.D. Ohio Number: infdco20171116f36 Visitors: 4
Filed: Oct. 26, 2017
Latest Update: Oct. 26, 2017
Summary: REPORT AND RECOMMENDATION DAVID A. RUIZ , Magistrate Judge . This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b). As discussed below, Plaintiff has failed to file her brief in this matter despite the court's Order giving her additional time to do so, requiring her to file within the extended time, and warning her that her case may be dismissed for failure to prosecute. Accordingly, the undersigned RECOMMENDS that this
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REPORT AND RECOMMENDATION

This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b). As discussed below, Plaintiff has failed to file her brief in this matter despite the court's Order giving her additional time to do so, requiring her to file within the extended time, and warning her that her case may be dismissed for failure to prosecute. Accordingly, the undersigned RECOMMENDS that this case be dismissed without prejudice.

I. Background

Pro se Plaintiff Sarah L. Hairston ("Plaintiff") filed a Complaint against the Commissioner of Social Security ("Defendant" or "Commissioner") on January 20, 2017. (R. 1.) On April 17, 2017, the Commissioner timely filed its Answer and the Transcript of Proceedings. (R. 8 & 9.) The Magistrate Judge's Initial Order required Plaintiff to file her brief on the merits within forty-five (45) days of service of Defendant's Answer.1 (R. 4.) Plaintiff did not file a brief within forty-five days, or by June 2, 2017, nor did she move the court for an extension of time. On October 3, 2017, this court issued an Order directing Plaintiff to file her brief on or before October 24, 2017. (R. 10.) Plaintiff was advised that failure to do so could result in dismissal with prejudice for want of prosecution. Id.

II. Discussion

The Sixth Circuit has indicated that district courts have the inherent power to enter a sua sponte order dismissing an action under Federal Rule of Civil Procedure 41(b). Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) (citing Link v. Wabash R.R., 370 U.S. 626, 630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962); Carter v. Memphis, 636 F.2d 159, 161 (6th Cir. 1980)). In addition, Rule 16(f)(1)(C) of Federal Rules of Civil Procedure authorizes courts to dismiss an action where a party fails to comply with a court order. Fed. R. Civ. P. 16(f)(1)(C) provides:

(f) Sanctions. (1) In General. On Motion or on its own, the court may issue any just orders, including those authorized by Rule 37(b)(2) (A)(ii)-(vii), if a party or its attorney: . . . (C) fails to obey a scheduling or other pretrial order.

Although pro se plaintiffs are held to less stringent standards than attorneys, cases filed by pro se plaintiffs may still be dismissed if the plaintiff fails to meet court orders. See Jourdan, 951 F.2d at 110 (concluding that pro se litigants are not to be accorded with any special consideration when they fail to comply with straight-forward procedural requirements and deadlines).

In this case, the Initial Order advised Plaintiff that her brief on the merits was to be filed within forty-five (45) days of the filing of the answer and transcript. (R. 4, PageID #: 21.) Defendant filed its Answer electronically with this Court on April 17, 2017, and certified that a copy of the Answer and transcript were served upon Plaintiff via U.S. Mail that same day. (R. 8, PageID #: 33.) Therefore, Plaintiff should have filed her brief on the merits by June 2, 2017.

On October 3, 2017, having not received Plaintiff's brief on the merits or a motion for extension of time, this court issued an Order directing Plaintiff to file her brief on or before October 24, 2017. (R. 10.) Plaintiff was advised that failure to do so could result in dismissal with prejudice for want of prosecution. Id. To date, Plaintiff has not filed her brief, moved for an extension of time or shown good cause for her inaction.

Accordingly, the undersigned RECOMMENDS that this case be dismissed without prejudice for failure to comply with this court's Orders and for failure to prosecute.

FootNotes


1. The court's order to show cause recited that Plaintiff had sixty days to file her brief. (R. 10, PageID #: 530.) The correct time period as shown in the Initial Order is forty-five days. (R. 4, PageID #: 21.) In any event, Plaintiff failed to file her brief within the relevant period.
Source:  Leagle

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