Opinion
1:17-CV-00714(TWD)
02-11-2019
JEREMY R. S., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
APPEARANCES: JEREMY R. S. Plaintiff, pro se 9281 US Route 9W, Rm 1 Athens, NY 12015 HON. GRANT JAQUITH United States Attorney for the Northern District of New York Counsel for Defendant Room 218 James T. Foley U.S. Courthouse Albany, New York 12207 OFFICE OF GENERAL COUNSEL Social Security Administration 26 Federal Plaza, Room 3904 New York, New York 10278 OF COUNSEL: JOHANNY SANTANA, ESQ. Special Assistant U.S. Attorney
APPEARANCES: JEREMY R. S.
Plaintiff, pro se
9281 US Route 9W, Rm 1
Athens, NY 12015 HON. GRANT JAQUITH
United States Attorney
for the Northern District of New York
Counsel for Defendant
Room 218
James T. Foley U.S. Courthouse
Albany, New York 12207 OFFICE OF GENERAL COUNSEL
Social Security Administration
26 Federal Plaza, Room 3904
New York, New York 10278 OF COUNSEL: JOHANNY SANTANA, ESQ.
Special Assistant U.S. Attorney THÉRÈSE WILEY DANCKS, United States Magistrate Judge
DECISION and ORDER
I. INTRODUCTION
This matter is presently before the Court to consider whether this action, essentially an appeal from an unfavorable determination of the Social Security Administration regarding Plaintiff's disability, should be dismissed pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based upon pro se Plaintiff's failure to prosecute. For the reasons that follow, the Court dismisses Plaintiff's Complaint (Dkt. No. 1) with prejudice.
II. PROCEEDINGS TO DATE
Plaintiff commenced this action pursuant to 42 U.S.C. §405(g) for review of an adverse decision of the Commissioner of Social Security by the filing of a Complaint on June 30, 2017. (Dkt. No. 1.) A Consent to the Jurisdiction of the Magistrate Judge was filed with the Complaint. (Dkt. No. 4.) Plaintiff was originally represented by Peter M. Margolius, Esq., who died in the Fall of 2017, prior to the time any briefs were due. The Commissioner filed the certified administrative record on December 7, 2017. (Dkt. No. 9.) Thereafter, the Court issued a Text Order staying all deadlines to permit Plaintiff an opportunity to obtain new counsel and directed Plaintiff to advise the Court in writing whether he would be proceeding pro se or if he would retain new counsel to represent him. (Dkt. No. 10.) By letter dated January 26, 2018, Plaintiff timely informed the Court he would proceed pro se and advised the Court of his mailing address as directed. (Dkt. No. 12.) The Clerk then provided Plaintiff with a copy of the Court's Pro Se Handbook and Notice. (Dkt. No. 13.) The Court also directed the Defendant to serve Plaintiff with a paper copy of the administrative record, which was completed by Defendant on February 12, 2018. (Dkt. Nos. 14, 15.)
See www.hudsonvalley360.com/article/peter-margolius-strong-legal-voice-dies-71, last visited February 11, 2019.
Plaintiff was ultimately directed to file a brief by November 21, 2018, and to provide the Court with his proper mailing address since a previous mailing from the Court sending Plaintiff a copy of the Text Order at Dkt. No. 14 was returned as undeliverable. (Dkt. Nos. 16, 17.) Plaintiff was also notified that failure to file his brief by November 21, 2018, and provide a proper mailing address by that same date "will result in dismissal of the action for failure to prosecute, failure to provide a proper mailing address, and failure to follow Court orders." (Dkt. No. 17.) Notably, Dkt. No. 17, sent to the only address the Court has on file for Plaintiff, was not returned as undeliverable although it was sent to the same address used for the mailing of Dkt. No. 14, which was returned per Dkt. No. 16. (See, generally, Docket.) As of the date of this Decision and Order, Plaintiff has failed to file a brief, or request an extension of any of the deadlines set by the Court. Plaintiff has likewise failed to contact the Court with any further information and he has not indicated he intends to prosecute this case, nor has he otherwise communicated with the Clerk regarding this action.
III. DISCUSSION
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in its discretion, dismiss an action based upon the failure of a plaintiff to prosecute the case, or to comply with the procedural rules or orders of the court. Fed. R. Civ. P. 41(b); see also Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised when necessary to achieve orderly and expeditious disposition of cases. See Freeman v. Lundrigan, No. 95-CV-1190, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996) (Pooler, J.). Even though Rule 41(b) speaks only of a dismissal on a motion by a defendant, courts have recognized that the rule does not abrogate a district court's inherent power to dismiss a complaint, sua sponte, for failure to prosecute. See Saylor v. Bastedo, 623 F.2d 230, 238-39 (2d Cir. 1980). It is also well-settled that the term "these rules" in Fed. R. Civ. P. 41(b) refers not only to the Federal Rules of Civil Procedure but also to the local rules of practice for a district court. See Tylicki v. Ryan, 244 F.R.D. 146, 147 (N.D.N.Y. 2006). In Social Security cases, General Order 18, under the heading " NOTIFICATION OF THE CONSEQUENCES OF FAILING TO FILE A BRIEF AS REQUIRED BY PARAGRAPH C.(1)(A-D) " (emphasis in original), provides that an "[a]ction may be dismissed with prejudice on the basis of the plaintiff's failure to file a brief." N.D.N.Y. General Order 18. Also, Local Rule 41.2 provides that "Whenever it appears that the plaintiff has failed to prosecute an action or proceeding diligently, the assigned judge shall order it dismissed." N.D.N.Y. L.R. 41.2(a). The Rule also provides that "failure to notify the Court of a change of address . . . may result in the dismissal of any pending action." Id. at 41.2(b).
The Court will provide pro se Plaintiffs with a copy of all of the unpublished decisions cited in this Report-Recommendation in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam). --------
The correctness of a Rule 41(b) dismissal is determined in light of five factors: (1) the duration of the plaintiff's failure to comply with the court order (or the court's procedural rules); (2) whether plaintiff was on notice that failure to comply would result in dismissal; (3) whether the defendant is likely to be prejudiced by further delay in the proceedings; (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard; and (5) whether the judge has adequately considered a sanction less drastic than dismissal. Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996).
In considering the duration of Plaintiff's failure to prosecute his claim, the Court notes that Local Rule 41.2(a) of the Northern District states that "the plaintiff's failure to take action for four (4) months shall be presumptive evidence of lack of prosecution." N.D.N.Y. L.R. 41.2(a). Upon review of the docket, it appears that Plaintiff has failed to file anything since he informed the Court in a letter received on January 29, 2018, that he would proceed pro se. (Dkt. No. 12.) Also, after not having any further contact from Plaintiff either in person, by telephone, or by letter, the Court provided him with an opportunity to file a brief and he did not do so. (Dkt. No. 17.) Plaintiff was warned that failure to file a brief would result in dismissal of the action. Id. Despite prodding from the Court, Plaintiff has not followed the Court's Order and directives after being given an opportunity to do so. Accordingly, the Court finds the first factor weighs in favor of dismissal.
"The Second Circuit requires that the plaintiff receive adequate notice that the case could be dismissed due to inaction." Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist. LEXIS 32899, at *10, 2005 WL 2205816, *4 (W.D.N.Y. Sept. 9, 2005) (citing Martens v. Thomann, 273 F.3d 159, 180-81 (2d Cir. 2001). Here, Plaintiff failed to contact the Court or file a brief or request an extension after being given an opportunity to do so by the Court. (Dkt. No. 17.) As noted above, Plaintiff was specifically notified by Text Order (Dkt. No. 17) that his failure to file a brief would result in dismissal. See Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, at *10, 2008 WL 1758644, at *3 (S.D.N.Y. Apr. 16, 2008) ("The Second Circuit has held that where a court puts a plaintiff on notice that the court is considering dismissal, and a plaintiff fails to file a document explaining the failures and outlining why the action should not be dismissed, this element has been met.") (citing Shannon v. General Elec. Co., 186 F.3d 186, 194-95 (2d Cir. 1999)); Europacific Asset Mgmt. Corp. v. Tradescape, Corp., 233 F.R.D. 344, 353 (S.D.N.Y. 2005) ("A court's prior warning of dismissal, and subsequent inaction by a plaintiff, weighs in favor of dismissal."). Thus, the second factor weighs in favor of dismissal.
The third factor is also satisfied as further delay is likely to prejudice Defendant who has filed required documents in accordance with General Order 18 or as directed by the Court. (Dkt. Nos. 9, 14, 15.) Nothing of substance has been completed in this case since the filing of the administrative transcript (Dkt. No. 9) over a year ago. Therefore, the third factor also weighs in favor of dismissal.
Under the circumstances, the Court finds the need to alleviate congestion on the Court's docket, and move cases toward trial, outweighs Plaintiff's right to receive a further chance to be heard in this case. It is the need to monitor and manage cases such as this when one party refuses to participate that delays the resolution of this and other cases, and that contributes to the Second Circuit's relatively long median time to disposition for social security cases.
Finally, the Court has carefully considered sanctions less drastic than dismissal of Plaintiff's complaint and finds them to be inadequate under the circumstances.
IV. CONCLUSION
The Court's records fail to reveal that any meaningful steps have been taken by Plaintiff to pursue his claims in this action. Despite several orders from the Court directing Plaintiff to take specific steps to pursue this action, Plaintiff has failed to comply and has provided no information to the Court concerning any measures taken to continue the action, or from which the Court could meaningfully gauge his level of persistence and enthusiasm for pursuing the action. Accordingly, based upon Plaintiff's failure to comply with directives from the Court or to file a brief, and after considering the factors relevant to a dismissal under Rule 41(b) of the Federal Rules of Civil Procedure, Plaintiff's complaint is dismissed with prejudice.
WHEREFORE, it is hereby
ORDERED that the Complaint is DISMISSED with prejudice, for failure to prosecute; and it is further
ORDERED that the Clerk provide Plaintiff with copies of Folk v. Rademacher, No. 00-CV-199S, 2005 U.S. Dist. LEXIS 32899, 2005 WL 2205816 (W.D.N.Y. Sept. 9, 2005); Freeman v. Lundrigan, No. 95-CV-1190, 1996 U.S. Dist. LEXIS 12296, 1996 WL 481534 (N.D.N.Y. Aug. 22, 1996); and Nolan v. Primagency, Inc., No. 07 Civ. 134, 2008 U.S. Dist. LEXIS 31268, 2008 WL 1758644 (S.D.N.Y. Apr. 16, 2008); and it is further
ORDERED that the Clerk serve a copy of this Decision and Order on Plaintiff in accordance with the Court's local rules.
IT IS SO ORDERED.
Dated: February 11, 2019
Syracuse, NY
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge