GREESON V. COLVIN, No. 1:2013cv00906 - Document 25 (M.D.N.C. 2015)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 01/23/2015; that Defendant's Motion to Dismiss for Lack of Prosecution (Docket Entry 22 ) be GRANTED, that Plaintiff's case be DISMISSED with prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, and that the final decision of Defendant be AFFIRMED. (Garland, Leah)
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GREESON V. COLVIN Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA LORETTA LYNN GREESON, Plaintiff, v CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant ) ) ) ) ) ) ) ) ) ) ) 1:13CV906 MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff btought this action pursuant to Section 1631(c)(3) of the Social Security Act (the "Act"), as amended (13S3(c)(3)), Commissioner of to obtain review Social Security denying het claim ("SSI") under Title XVI of the of a final decision of fot Supplemental the Security Income Act. This matter is befote the Coutt on Defendant's Motion to Dismiss for Failure to Ptosecute. (Docket F;nty 22.) The Court sent Plaintiff notice of her rþht to respond (Docket Etttry 23), however, she has not filed a response and the pedod for filing a response bdef has expired. Fot the reasons set forth below, it is tecommended that the case be dismissed fot Plaintiffs failute to prosecute. PROCEDURAL HISTORY On June 24, 201.3, Plaintiff filed this action in the United States Disttict Court fot the S7estern District of Missoud for judicial review of the unfavorable decision of the Administative LawJudge ("AI-J'). pocket E.ttry 4.) Defendant filed a Motion to Change Venue (Docket Entry 9) on Septembet 25, 20'1.3, assetting Petitionet tesides in the Middle Dockets.Justia.com District of North Carohna. Plaintiff, through counsel, initially challenged this assertion (Docket Entty 10), but then conceded that she did indeed live in the Middle District of Notth Caroltna (Docket Entry 11). Consequently, Defendant's Motion to Change Venue was granted (Docket E.rtry 1.2) on October 8,201,3. On October 10, 2013, Plaintiffs Missouti counsel moved (Docket E.ttty 13) to withdraw as Plaintiffs attorney in this matter because he was not licensed to practice law in this District. (Id. at 1.) Plaintiffs Missouti counsel's Motion for Leave to ìØithdraw pocket E.rtry 13) states furthet that he had contacted PlaintifPs priot represented her Noth Carohna counsel, who "for her Social Security Disability claim while it was pending befote Social Secudty Administr^tfon." (Id.) Missouri the counsel represented that PlaintifPs pdor Notth Carolina counsel agreed to speak to Plaintiff about taking over as het attotney in this matter once the action was tansfered from Missouti to North Caroltna. (Id.) Missouri counsel represented futther that he had explained to Plaintiff that her prior Notth Carolina counsel was avitlable to discuss taking over het case, explained further to Plaintiff the urgency of obtaining alternate counsel, and also explained "it would be advisable fot Plaintiff to immediately ptocure new counsel as deadlines in this case my be pending in the near future." (Id. at 1.-2.) However, PlaintifPs Missouri counsel noted that, as of October 201.3, Plaintiff had not contacted Noth 10, Carolna counsel. Qd.) Counsel's Motion to \X/ithdtaw (Docket E.rtry 13) was gtanted on October 11,201.3 (Docket E.ttty 14), which was the same day the action was transferted to this Defendant answeted on Apdl Disttict. (Docket Entry 1., 2014, (Docket 15.) E.rry 18) and also filed the administrative tecotd (Docket Enties 19 and 20). That same day the Coutt sent Plaintiff 2 a Letter (Docket Entty 21) informing her that the action would ptoceed by motions and that Plaintiffls "motions must be filed within 45 days from the date of this lettet." (Id.) The Lettet stated furthet that failute to comply with the Letter "will be consideted a violation of Local Rules 1.2 and 7.3" "fot which sanctions may be imposed as provided by Local Rule 83.4." (Id. at2.) On April 11,2014, the Court's Lettet (Docket E.rtty 21) was returned as "undeliverable" and was matked ",{.TTEMPTED-NOT KNO\X/N/UNBLE TO FORW,A.RD." (4/1,1,/2014 Minute E"tty.) No motion or pleading from Plaintiff has been filed in this matter and the 45 days has expited. On July 31, 2014, Defendant filed a Motion to Dismiss fot Lack of Prosecution. pocket F,ntry 22.) On -A.ugust 1,,201,4 the Coun mailed Plaintiff aLetter informing het of her rþht to tespond and instucting het to file any response within 21, days. pocket E.ttty 23.) Plaintiff was futthet informed that het "fultxe to tespond. . . within the allowed tjme may cause the court to conclude that the defendant's contentions are undisputed. Thetefote, unless you fìle a response in opposition to the motion, it is likely yorrt case will be dismissed or summary judgment granted in favot of the defendant." Qd.) On .,{.ugust 15,20"1.4, the Coutt's Letter was returned as "undeliverable" and was matked "ATTEMPTED-NOT KNO\K|NI/UNABLE TO FOR\)Ø,A.RD." (À.{inute Ent y 8/1,5/201,4.) The time fot Plaintiff to respond has passed and she has not responded to Defendant's Motion to Dismiss for Lack of Prosecution pocket E.rt y 22), nor has she fìled any othet document. Last, on Jantary 8, 20L5, the undersigned affotded Plaintiff a ftnal oppottunity to prosecute her case by entering an Order stating that she had fouteen days to file a motion as per the Coutt's scheduling otder and to tespond to Defendant's Motion to Dismiss. J Q)ocket E.rtty 24.) The undetsigned noted that íf Plaintiff failed to comply with this Otdet, he would reconrnend dismissing her case with ptejudice. (Id.) The time for Plaintiff to comply with the Coutt's ptiot otdets and instructions has expited. APPLICABLE LAW Undet Rule 41 of the Federal Rules of Civil Procedure, "[i]f the plaintiff fails to prosecute or to comply with fthe F'edetal Rules of Civil Ptocedute] or a court order," the Court may enter an ordet of involuntary dismissal. Fed. R. Civ. P 41(b). In assessing whethet dismissal is apptoptiate urider Rule 41þ), u court evaluates (1) the degtee of the plaintiffs petsonal tesponsibility for the failute; Q) the prejudice caused to the defendant; (3) whethet the plaintiff has a history of delibetately proceeding in a dilatory fashion; and (4) the avaiablhty of a less dtastic sanction. Chandler basing Corp. u. Iuþt<, 669 tr.2d 91.9, 920 (4th Ctr. 1,982); see also Ballard u. Carls0n,882F.2d 93,95 (4th Cir. 1989) (rolding the magisrate judge's pdor explicit warning that a reconünendation of dismissal would tesult if the plaintiff failed to obey the judge's ordet was proper grounds fot the district court to dismiss the suit when the plaintiff did not comply despite the explicit watning) Pro se litigants are not held to the same high standatds as attorneys. Haghes u. Rowe, 449 U.S. 5, 10 n.7 (1980); Hairues u. Kemer,404 U.S. 519,520 (1972). Pto se litigants must, however, meet certain standatds, including "time reqL irements and respect fot court otdets without which effective judicial administration would be impossible." Ballard, 882 tr.2d at 96. .,\ccotdingly, pro se litigants are subject to the provisions of Rule 41. \X/hereaplarn:J:ff fails to prosecute het Social Security appeal, dismissal is a necessary and appropriate temedy fot the efficient administration of justice. See 4 Unk u. If,/abash RR Cr., 370 U.S. 626, 631. (1,962) (rolding that district court did not abuse its discretion in dismissing a case with prejudice for failure to prosecute in order to "achieve the ordetly and expeditious disposition of cases."); Robinson u. IYix Filtration Corp. LLC, 559 F.3d 403, 409-11 (4th Cir. 2010) (recognizing continued vitality of Unk, court found district court did not abuse discretion in denying a Rule 59(e) motion based on patty's failure to tespond to dispositive motion). Finally, plaintiffs have a general duty to prosecute their cases. In this regard, a pÍo plaintiff must keep the Coutt apprised of her current addtess. See Carry u. se King 856 tr.2d 1439,1441, (9th Cir. 1983). -d plaintiffs failure to keep the Court infotmed of a new address constitutes a fatftue to prosecute. See Blaknejt u. Commissioner of Sodal Sec., No. 1:12CV169- LG-JMR, 2013 WL 6796552, x2 (S.D. Miss. Dec. 20, 2013) ("Blakney has not taken any action to prosecute her lawsuit since June 22, 201.2. She has appatently moved without noti$ring the Court of het new addtess; thus, lesset sanctions are not avatlable to the Court due to its inability to contact het. Finally, the delay is clearly atúibutable to Blakney since she is a pro se plaintiff, and her conduct appears to be intentional, since she has abandoned her lawsuit."); Bowie u. Reed, No. 1:12-cv-154-RJC,201,3 WL 1798968, *1 flX/.D.N.C. Apr1l,29 201,3) ("Plaintiffs failure to keep the Court informed of his new addtess constitutes a failute to prosecute.'); Jones u. Social Secøriry (E,.D. La. Feb. 22,201,3) adoþted þt Admin., Civil Action No. 12-2437, 201,3 WT' 1,397343 201.3 WL 1,397340 (E.D. La. Apdl 5, 20'1.3); Crant a. Astrae, No.09-2818,201.0WL3023915 Q).Minn.July 13,201,0) adopted fu2010WL302661. p. Minn. Aug. 2, 201.0); O'Neal u. Cook Motorcars, Ltd., No. Civ. L-96-181.6, 907900, x1-2 P. 1,997 WL Md. Apr. 1,1997) (finding that a pro se plaintiff without a fìxed address ot telephone number is still obligated to prosecute his case), ffirned 1,49 F.3d 1169 (4th Ctt. 5 1998) (unpublished); Empasis u. Sha/a/, No. C-94-20436 RMSø, 1995 !ØL 55295, *1 OJ.D. Cal. Jan. 31, 1995) ("Plaintiffls failure to keep the coutt infotmed of his new address constitutes failure to prosecute, as does his failue to comply with the court's Jtne 27,"1.994 procedutal otder."). ANALYSIS Plaintiff has cleady failed to prosecute this actjon and to comply with otdets of this Coutt. Het action, thetefore, is subject to dismissal. Given the lengthy pedod dudng which she has taken no action (it has been more than seven months since het dispositive motion was due and at least fout months since Plaintiff was to tespond to Defendant's motion to dismiss) the Court can only assume that she has decided not to pursue the mattet. To determine whether dismissal is the appropÅate sanction fot Plaintiffs failute to file any motions or responsive pleadings, the Coutt has consideted the factots outlined in Chandler L,easing. First, Plaintiff failed to follow the Cout's Scheduling Otdet ot tespond to Defendant's motion to dismiss in spite of the Coutt's transmittal of the tequired Roseboro warning. It is true that Plaintiff likely did not receive the Coutt's Scheduling Otder ot its Ro¡eboro letter, because these documents have been teturned to the court as undeliverable. Nevetheless, as explained above, Petitioner herself beats the responsibility of ptoviding the Cout with a teliable means of Therefore, the Second, communicating with het, which she has not done here. ftst factor weighs in favor of dismissal. Plaintifls failure to prosecute has tendered Defendant unable to address the medts of PlaintifPs claim. Defendant has been required to ariswer the Complaint in this action, as well as compile and file the dministrative Recotd. Plaintiff now appears to have 6 abandoned her claim. Thus, the second factor also favots dismissal. Similatly, factor three favors dismissal because Plaintiff has had ample time to tespond to the motion to dismiss, and the Court has also made effotts to prod her into fìling a brief, but Plaintiff has failed to do eithet. Plaintiff has failed to follow ptocedute or to respond to Defendant. And, again, Plaintiff has failed to provide the Court with a reliable means of communicating with her. Finally, given PlaintifPs complete lack of compliance over a significant pedod of tìme, any lesser sanctions would likely be ineffective. The Fourth Circuit has held that a district court does not abuse its disctetion by dismissing an actton aftet issuing an explicit and teasonable watning. Ba//ørd, 882 tr.2d àt 95-96. Additionally, lesser sanctions are not avatlable to the Court due to its inability to contact her. Dismissal is an approptiate sanction fot Plaintiffls failure to prosecute, nofl-compliance with the Coutt's orders, and failure to ptovide the Coun with any reliable means of communicating with het. CONCLUSION AND RECOMMENDATION it is RECOMMENDED ìíherefote, based on the fotegoing, that Defendant's Motion to Dismiss fot Lack of Ptosecution (Docket Entty 22) be GRANTED, that Plaintiffs case be DISMISSED with ptejudice pursuant to Rule 41(b) of the Fedetal Rules of Civil Ptocedure, and that the final decision of Defendant be AFFIRMED. J Janua ,201,5 7 ebster ted States Magistrate Judge
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