Opinion
No. CIV-19-635-P
03-16-2020
DOROTHY RHEA HAGOPIAN, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 405(g) seeking to appeal the final decision of Defendant Commissioner denying her application for disability benefits. Plaintiff initiated this action on July 15, 2019. Doc. No. 1. A review of the Court file reflects no evidence Defendant has been served with the Summons and Complaint as required by Federal Rule of Civil Procedure 4.
On October 22, 2019, the Court issued an Order to Show Cause why this case should not be dismissed without prejudice based on Plaintiff's failure to serve Defendant. Doc. No. 4. In said Order, the Court explained that, pursuant to Federal Rule of Civil Procedure 4(m), when a defendant is not served with process and a copy of the complaint within the applicable deadline, "the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Id. at 1. Plaintiff failed to respond.
On November 6, 2019, the undersigned recommended dismissal of this action based on Plaintiff's failure to prosecute and comply with the Court's directives. Doc. No. 5. On November 25, 2019, Plaintiff requested issuance of three summons, one to the United States Attorney for the Western District of Oklahoma Timothy Downing, one to Attorney General William Barr, and one to the Defendant agency. Doc. No. 6. In light of Plaintiff's action to seemingly prosecute the case, on January 8, 2020, the Court declined to dismiss this matter and referred it back to the undersigned for further proceedings. Doc. No. 8.
On February 26, 2020, after Plaintiff again failed to file proof of service and no answer or other responsive pleading was filed by Defendant, the Court issued a Second Order to Show Cause. Doc. No. 9. The Court noted that since "Plaintiff's request in November 2019 for issuance of summons, the record does not indicate Plaintiff has served Defendant or otherwise explained her failure to perfect service on Defendant." Id. at 2. Accordingly, the Court ordered Plaintiff to show cause within ten days as to why this matter should not be dismissed without prejudice. Id. at 2-3. Plaintiff has not responded.
Pursuant to Federal Rule of Civil Procedure 41(b), if a plaintiff "fails to prosecute or to comply with these rules or a court order," the Court may dismiss the action. The Tenth Circuit "ha[s] consistently interpreted Rule 41(b) to permit courts to dismiss actions sua sponte for a plaintiff's failure to prosecute." Huggins v. Supreme Court of U.S., 480 F. App'x 915, 916-17 (10th Cir. 2012) (quotations omitted); see also AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) ("A district court undoubtedly has discretion to sanction a party for failing to prosecute or defend a case, or for failing to comply with local or federal procedural rules." (quotations omitted)). If the dismissal is without prejudice, the Court generally need not follow any "particular procedures" in entering the dismissal order. AdvantEdge Bus. Grp., 552 F.3d at 1236; see also Robledo-Valdez v. Smelser, 593 F. App'x 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed. R. Civ. P. 41(b) without attention to any particular procedures).
Plaintiff's failure to serve Defendant in this matter and/or comply with the Court's orders leaves the Court unable "to achieve [an] orderly and expeditious" resolution of this action. Link v. Wabash R.R., 370 U.S. 626, 629-31 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative). As outlined above, the Court has provided Plaintiff sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.
RECOMMENDATION
Based on the foregoing findings, it is recommended Plaintiff's action be dismissed without prejudice based on her failure serve Defendant and/or comply with the Court's orders. Plaintiff is advised of the right to file an objection to this Report and Recommendation with the Clerk of this Court by April 6th , 2020, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending motion not specifically addressed herein is denied.
Dated this 16th day of March, 2020.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE