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BLAIR v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 8:11-cv-01839-RMG-JDA. (2012)

Court: District Court, D. South Carolina Number: infdco20120601j33 Visitors: 5
Filed: May 04, 2012
Latest Update: May 04, 2012
Summary: REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE JACQUELYN D. AUSTIN, Magistrate Judge. Plaintiff is proceeding pro se on behalf of her minor child and brought this action on June 14, 2011 in the United States District Court for the Middle District of Alabama to obtain judicial review of a final decision of the Commissioner of Social Security. [Doc. 1-1.] On July 28, 2011, the case was transferred to the District of South Carolina. [Doc. 1.] Defendant filed a motion to dismiss on February 21, 20
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REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

JACQUELYN D. AUSTIN, Magistrate Judge.

Plaintiff is proceeding pro se on behalf of her minor child and brought this action on June 14, 2011 in the United States District Court for the Middle District of Alabama to obtain judicial review of a final decision of the Commissioner of Social Security. [Doc. 1-1.] On July 28, 2011, the case was transferred to the District of South Carolina. [Doc. 1.] Defendant filed a motion to dismiss on February 21, 2012. [Doc. 35.] On March 14, 2012, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the summary judgment/dismissal procedure and the possible consequences if she failed to respond adequately. [Doc. 37.] The Roseboro Order was returned as undeliverable and unable to forward on March 27, 2012. [Doc. 40.] The Court resent the Roseboro Order to Plaintiff on March 27, 2012, setting a response date for May 3, 2012. [Doc. 45.] Despite the explanation of the summary judgment/dismissal procedure and the possible consequences for failing to respond, Plaintiff did not respond to the motion to dismiss.

"The Federal Rules of Civil Procedure recognize that courts must have the authority to control litigation before them, and this authority includes the power to order dismissal of an action for failure to comply with court orders." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989) (citing Fed. R. Civ. P. 41(b)). "Federal courts possess an inherent authority to dismiss cases with prejudice sua sponte." Gantt v. Md. Div. of Corr., 894 F.Supp. 226, 229 (D. Md. 1995) (citing Link v. Wabash R. Co., 370 U.S. 626 (1962); White v. Raymark Indust., Inc., 783 F.2d 1175 (4th Cir. 1986); Zaczek v. Fauquier Cnty., Va., 764 F.Supp. 1071, 1074 (E.D. Va.1991)).

The Fourth Circuit, in Davis v. Williams, recognizing that dismissal with prejudice is a harsh sanction that should not be invoked lightly, set forth four factors for determining whether Rule 41(b) dismissal is appropriate:

(1) the degree of personal responsibility on the part of the plaintiff; (2) the amount of prejudice to the defendant caused by the delay; (3) the presence or absence of a drawn out history of deliberately proceeding in a dilatory fashion; and (4) the effectiveness of sanctions less drastic than dismissal.

588 F.2d 69, 70 (4th Cir. 1978) (citing McCargo v. Hedrick, 545 F.2d 393, 396 (4th Cir. 1976)). Subsequently, however, the Fourth Circuit noted that "the four factors . . . are not a rigid four-pronged test," and whether to dismiss depends on the particular circumstances of the case. Ballard, 882 F.2d at 95. For example, in Ballard, the court reasoned that "the Magistrate's explicit warning that a recommendation of dismissal would result from failure to obey his order is a critical fact that distinguishes this case from those cited by appellant.. . . In view of the warning, the district court had little alternative to dismissal. Any other course would have placed the credibility of the court in doubt and invited abuse." Id. at 95-96.

As Plaintiff is proceeding pro se, she is personally responsible for her failure to respond to the motion to dismiss. Over ten months have passed since the case was first filed in the District of Alabama, and over two months have passed since Defendant filed the motion to dismiss. Moreover, Plaintiff failed to keep the Court advised of any changes in address as directed by this Court's Order dated August 12, 2011, despite being advised that the case may be dismissed for violating that Order. [Doc. 10.] Finally, on March 27, 2012, Plaintiff filed a document stating she wished to close the case. [Doc. 39.] Although she later filed a document stating she wished to proceed with the case [Doc. 42], she has now failed to respond to Defendant's motion to dismiss. The Court has warned Plaintiff that the motion would be granted, ending Plaintiff's case, if she failed to respond adequately. [Doc. 37.] Despite this explanation, Plaintiff has elected not to respond. Because Plaintiff has already ignored Orders and deadlines set by the Court, sanctions less drastic than dismissal would not be effective.

Wherefore, based upon the foregoing, the Court recommends that Defendant's motion to dismiss be GRANTED and the case be DISMISSED.

IT IS SO RECOMMENDED.

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:

Larry W. Propes, Clerk United States District Court 300 East Washington St, Room 239 Greenville, South Carolina 29601

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).

Source:  Leagle

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