Opinion
CIV-20-1142-P
03-23-2021
DONALD WATKINS, Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, appearing pro se and in forma pauperis, initiated this action contesting the suspension of his Social Security disability benefits. Doc. No. 1. Plaintiff previously filed an Emergency Temporary Restraining Order (Doc. No. 5) and a request for an "Amended Emergency Temporary Restraining Order." Doc. No. 8. The Court ordered Defendant to respond to these Motions and Defendant did so on January 25, 2021. Doc. No. 17. Defendant indicated, inter alia, that the Social Security Administration reinstated Plaintiff's benefits pending the outcome of his administrative appeal. Id.
On January 27, 2021, the Court ordered Plaintiff to reply to Defendant's Response no later than February 1, 2021. Doc. No. 18. The Court also noted Plaintiff could voluntarily dismiss this matter pursuant to Federal Rule of Civil Procedure (a)(1)(A)(i). Id. Plaintiff failed to do either.
On February 9, 2021, the Court issued an Order directing Plaintiff, no later than February 19, 2021, to either file his Reply to Defendant's Response or show cause in writing why this matter should not be dismissed. Doc. No. 21. On February 19, 2021, Plaintiff filed "Plaintiff's Cause to Maintain a Civil Action on the Docket," which offered reasons he had not previously filed a Reply but did not constitute a Reply to Defendant's Response. Doc. No. 22. As a result, the Court again ordered Plaintiff to file a Reply to Defendant's Response no later than March 4, 2021. Doc. No. 23. To date, Plaintiff has failed to do so.
Pursuant to Fed. R. Civ. P. 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 the United States, 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 comply with court orders and/or failure to prosecute this matter 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 his failure to 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 12th , 2021, 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.").
"Plaintiff's Cause to Maintain a Civil Action on the Docket" (Doc. No. 22) is a response to this Court's previous Order directing Plaintiff to show cause why this case should not be dismissed. To the extent the Clerk of this Court mistakenly filed it as a formal Motion, it should be denied without prejudice.
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 23rd day of March, 2021.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE