United States District Court, W.D. Tennessee, Eastern Division
ORDER DISMISSING CASE FOR FAILURE TO
BREEN UNITED STATES DISTRICT JUDGE
January 11, 2017, the Plaintiff, Milton Beard, filed a
pro se complaint seeking judicial review of a
decision of the Defendant, Commissioner of Social Security.
(Docket Entry (“D.E.”) 1.) In its April 25, 2017
order granting the Plaintiff's motion to proceed in
forma pauperis, the Court warned Beard that failure to
comply with the Court's requirements, including
“any other order of the Court, may result in the
dismissal of the action.” (D.E. 4 at PageID 12.) After
the Commissioner filed an answer on July 14, 2017, (D.E. 7),
the Court entered a scheduling order on July 20, 2017, giving
the Plaintiff thirty days to file a brief in support of his
claim, (D.E. 8). After he failed to do so, the Court ordered
him to show cause within fifteen days of September 26, 2017,
as to why this action should not be dismissed for failure to
prosecute pursuant to Federal Rule of Civil Procedure 41.
(D.E. 10.) The Court again cautioned Beard that failing to
respond would result in the dismissal of this case in its
entirety. (Id.) As of the date of this order, no
response has been filed.
permits a district court to dismiss an action if a plaintiff
fails to prosecute or comply with court orders. Fed.R.Civ.P.
41(b). While the rule “does not expressly provide for a
sua sponte dismissal . . . it is well-settled that
the district court can enter a sua sponte order of
dismissal under Rule 41(b).” Rogers v. City of
Warren, 302 F. App'x 371, 375 n.4 (6th Cir. 2008)
(citation omitted). “The rule allows district courts to
manage their dockets and avoid unnecessary burdens on both
courts and opposing parties.” Shavers v.
Bergh, 516 F. App'x 568, 569 (6th Cir. 2013) (per
curiam) (citation omitted). Notably, “[a]lthough
pro se plaintiffs are held to less stringent
standards than attorneys, cases filed by pro se
plaintiffs may still be subject to dismissal if the plaintiff
fails to meet court orders.” Roman v. Comm'r of
Soc. Sec., No. 3:11-CV-2096, 2012 WL 2026713, at *2
(N.D. Ohio May 18, 2012) (citing Jourdan v. Jabe,
951 F.2d 108, 110 (6th Cir. 1991)), report &
recommendation adopted by 2012 WL 2026616 (N.D. Ohio
Jun. 5, 2012).
Sixth Circuit has articulated four factors to guide district
courts in assessing whether dismissal for failure to
prosecute is warranted:
(1) whether the party's failure is due to willfulness,
bad faith, or fault; (2) whether the adversary was prejudiced
by the dismissed party's conduct; (3) whether the
dismissed party was warned that failure to cooperate could
lead to dismissal; and (4) whether less drastic sanctions
were imposed or considered before dismissal was ordered.
Crawford v. Beaumont Hosp.-Wayne, No. 17-1305, 2017
WL 4182098, at *2 (6th Cir. Sept. 12, 2017) (quoting
Schafer v. City of Defiance Police Dep't, 529
F.3d 731, 737 (6th Cir. 2008)). “Although typically
none of the factors is outcome dispositive . . . a case is
properly dismissed by the district court where there is a
clear record of delay or contumacious conduct.”
Marcelino v. Colvin, No.
3:16-CV-465-TRM-HGB, 2017 WL 1839194, at *2 (E.D. Tenn. Apr.
17, 2017) (quoting Schafer, 529 F.3d at 737),
report & recommendation adopted by 2017 WL
1843212 (E.D. Tenn. May 5, 2017). Applying these factors to
the present case, the Court finds that dismissal pursuant to
Rule 41(b) is warranted. Fed.R.Civ.P. 41(b).
the first factor, “[w]illfulness, bad faith, or fault
is demonstrated when a plaintiff's conduct evidences
either an intent to thwart judicial proceedings or a reckless
disregard for the effect of his conduct on those
proceedings.” Shavers, 516 F. App'x at 570
(internal quotation marks omitted). A pro se
plaintiff's lack of response following a court warning
that such inaction could result in dismissal evidences his
willful failure to prosecute the case. See, e.g.,
Norris v. Comm'r of Soc. Sec., No. 14-13559,
2016 WL 1267101, at *2 (E.D. Mich. Mar. 15, 2016) (finding
that the first and third factors favored dismissing a Social
Security appeal after the pro se petitioner failed
to respond to two orders to submit court filings, the latter
of which warned that failing to comply could result in the
case's dismissal), report & recommendation
adopted by 2016 WL 1259152 (E.D. Mich. Mar. 31, 2016).
In Social Security appeals, this factor tends to weigh
against pro se plaintiffs who do not comply after
courts provide a subsequent “opportunity for
compliance.” Rivera v. Comm'r of Soc.
Sec., No. 4:16CV2316, 2017 WL 1683660, at *1 (N.D. Ohio
Apr. 11, 2017) (indicating that failing to file any court
documents following two court orders to do so amounted to the
pro se “plaintiff appear[ing] to have
abandoned her case”), report & recommendation
accepted by 2017 WL 1649825 (N.D. Ohio May 2, 2017);
see, e.g., McCoy M.B. v. Comm'r of Soc.
Sec., No. 3:15-cv-01284, 2016 WL 3647653, at *1 (N.D.
Ohio Jan. 5, 2016), report & recommendation adopted
by 2016 WL 3555340 (N.D. Ohio Jun. 30, 2016). Thus,
given that Beard disregarded the Court's scheduling
order, (D.E. 8), and order to show cause, (D.E. 10), the
first prong favors dismissal.
respect to the second factor . . . ‘[t]he key to
finding prejudice . . . is whether the defendants waste[d]
time, money, and effort in pursuit of cooperation which [the
plaintiff] was legally obligated to provide.'”
Crawford, 2017 WL 4182098, at *3 (alterations in
original) (quoting Schafer, 529 F.3d at 739).
“[A] defendant cannot be expected to invest time,
resources and expenses to defend a case that a plaintiff may
have abandoned.” Roman, 2012 WL 2026713, at
*2. “While [a] [d]efendant is not prejudiced by a small
delay, [a] [d]efendant should be afforded a final decision at
some time.” Hopkins v. Astrue, No. 03-70455,
2012 WL 3963340, at *2 (E.D. Mich. Aug. 8, 2012), report
& recommendation adopted by 2012 WL 3966246 (E.D.
Mich. Sept. 11, 2012). Accordingly, here, “other than
having to compile the administrative record unnecessarily and
to file the briefs in the case, ” “there is no
great prejudice to the Commissioner.” Rivera,
2017 WL 1683660, at *1.
third prong, which the Sixth Circuit described as “a
key consideration” in analyzing whether to dismiss a
case under Rule 41(b), has been satisfied, as the Court
clearly warned Beard twice, (D.E. 10; D.E. 4 at PageID 12),
that failure to respond could result in dismissal of this
action. Shavers, 516 F. App'x at 570 (quoting
Schafer, 529 F.3d at 737); see Rivera, 2017
WL 1683660, at *1 (determining that dismissing the case was
“an appropriate sanction” in light of the fact
that “the plaintiff was explicitly warned that failure
to file her brief may result in dismissal with
the final factor, because the Plaintiff failed to prosecute
this case beyond filing his complaint, (D.E. 1), dismissal is
warranted. See Marcelino, 2017 WL 1839194, at *2
(“[D]ismissal is appropriate when a pro se
litigant has engaged in a clear pattern of delay.”
(quoting Jourdan, 951 F.2d at 110)); Duvall v.
Comm'r of Soc. Sec., No. 2:12-cv-486, 2012 WL
5288125, at *2 (S.D. Ohio Oct. 25, 2012) (explaining that
“no alternative sanction would protect the integrity of
the pretrial process” “[b]ecause [the]
[p]laintiff has missed deadlines and disregarded [c]ourt
orders”), report & recommendation adopted
by 2012 WL 5935950 (S.D. Ohio Nov. 27, 2012).
“Without a dispositive motion setting forth the alleged
errors the Commissioner has committed in denying his
application for benefits, with citation to the record to
support factual allegations . . . the Court cannot undertake
a meaningful review of the decision on appeal.”
Marcelino, 2017 WL 1839194, at *2 n.1 (noting
“that the [p]laintiff ‘bears the burden of
proving his entitlement to benefits'” (quoting
Boyes v. Sec'y. of Health and Human Servs., 46
F.3d 510, 512 (6th Cir. 1994))); see McCoy M.B.,
2016 WL 3647653, at *2 (reasoning that because
“briefing [was] necessary” to adjudicate a
pro se Social Security appeal, “a sanction
less than dismissal would not be effective in ensuring
resolution of the case”).
“[a]lthough pro se plaintiffs are held to less
stringent standards than attorneys, cases filed by pro
se plaintiffs may still be dismissed if the plaintiff
fails to meet court orders.” Rivera, 2017 WL
1683660, at *2 (“[P]ro se litigants
are not to be accorded any special consideration when they
fail to comply with straight-forward procedural requirements
and deadlines.” (citing Jourdan, 951 F.2d at
110)). Because Beard has been wholly noncompliant, despite
the Court's show-cause order, dismissing the case is the
only appropriate sanction. (D.E. 10.)
light of the majority of Rule 41(b) factors supporting
dismissal, this matter is DISMISSED without prejudice.
See McCoy M.B., 2016 WL 3647653, at *2
(“[A]lthough warned that her [c]omplaint may be
dismissed with prejudice, considering the fact that [the]
[p]laintiff is proceeding pro se, the [court]
concludes that dismissal ...