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Perry v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

April 26, 2018

REGINALD PERRY, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Victoria A. Roberts District Judge.

          REPORT AND RECOMMENDATION

          ANTHONY P. PATTI UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION: The Court should dismiss Plaintiff's action pursuant to Federal Rule of Civil Procedure 41(b) and Eastern District of Michigan Local Rule 41.2, without prejudice, for failure to prosecute.

         II. REPORT

         Plaintiff, Reginald Perry, brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) disallowing benefits under the Social Security Act. This matter has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

         A. Background

         On August 18, 2017, Plaintiff, Reginald Perry, proceeding without the assistance of counsel, filed this action seeking judicial review of the final decision of the Commissioner of Social Security. (DE 1.) The Court granted Plaintiff's application to proceed without prepaying fees or costs and request for service of the complaint on August 21, 2017. (DEs 5, 6.) On December 1, 2017, the Commissioner of Social Security filed an answer and a certified copy of the transcript of the Social Security proceedings. (DEs 13, 14.) Thereafter, the Court issued a scheduling order. (DE 15.) Pursuant to that Order, Plaintiff's motion for summary judgment was due by January 8, 2018, with the Commissioner being required to file her own motion for summary judgment the following month. (Id.)

         However, Plaintiff did not file a motion for summary judgment, nor did he seek any extensions of time. On January 17, 2018, the Court entered an Order regarding Plaintiff's failure to comply with the scheduling order, and requiring him to show cause, in writing, on or before January 23, 2018, why this case should not be dismissed for failure to prosecute. (DE 16.) Plaintiff again failed to respond to the Court's order. Accordingly, on January 29, 2018, the Court entered an Order requiring Plaintiff to appear in person on Friday, February 9, 2018 at 10:00 A.M., at the United States District Court, Theodore Levin U.S. Courthouse, 231 W. Lafayette Boulevard, Room 624, Detroit, Michigan, to show cause why this case should not be dismissed for failure to prosecute. (DE 17.) The Court admonished Plaintiff in that Order that he should be prepared to show cause as to why the Undersigned should not recommend dismissal of this action for his repeated failure to read orders, maintain communication with the Court and comply with deadlines, including the deadline for filing his brief on the merits. The Court further warned Plaintiff that his failure to comply with this Order could result in a Report and Recommendation that this action should be dismissed pursuant to Federal Rule of Civil Procedure 41(b) and E.D. Mich. LR 41.2. (Id.) Because the Court was closed on February 9, 2018 due to inclement weather, that hearing was rescheduled to Friday, February 23, 2018. (DE 18.)

         On February 23, 2018, Plaintiff appeared in person, and also filed a response to the show cause order. (DE 19.) Plaintiff explained that he did not file his motion for summary judgment, or respond to the Court's prior show cause order, because he had a respiratory infection and had issues with his back, and also because he was proceeding without the assistance of counsel and did not understand the Court's rules and procedures. Plaintiff apologized for his failure to timely comply with the Court's orders, asked the Court to extend the deadline for filing his motion for summary judgment and indicated that he may attempt to secure representation.

         On February 26, 2018, the Court entered an Order vacating the order to show cause and finding that Plaintiff made a showing of good cause to extend the deadlines. (DE 20.) The Court again set a briefing schedule for the remainder of this action, ordering that Plaintiff's motion for summary judgment be filed by April 11, 2018. (Id.) Plaintiff was expressly instructed to read and follow the Federal Rules of Civil Procedure, the Local Rules of the Eastern District of Michigan, and my Practice Guidelines. He was further admonished to read and comply with all Court Orders. The Court's February 26, 2018 Order also expressly warned Plaintiff that “there will be no further extensions of time in this matter.” (Id. (emphasis in original).)

         To date, Plaintiff has not filed his motion for summary judgment, sought to explain why he has again missed the briefing deadline or otherwise contacted the Court regarding this case.

         B. Standard

         Federal Rule of Civil Procedure 41(b) and Local Rule 41.2 authorize involuntary dismissal for failure to prosecute or to comply with rules of procedure or court orders. See also Chambers v. Nasco, Inc., 501 U.S. 32, 49 (1991) (noting that “a federal district court has the inherent power to dismiss a case sua sponte for failure to prosecute” as recognized in Link v. Walbash R. Co., 370 U.S. 626, 629-32 (1962)). “This measure is available to the district court as a tool to effect management of its docket and avoidance of unnecessary burdens on the tax- supported courts and opposing parties.” Knoll v. AT&T, 176 F.3d 359, 63 (6th Cir. 1999).

         The United States Court of Appeals for the Sixth Circuit directs district courts to consider the following factors in ...


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