United States District Court, S.D. Georgia, Augusta Division
March 24, 2015
RODNEY J. PATIO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
BRIAN K. EPPS, Magistrate Judge.
Plaintiff, who is represented by attorney Evita A. Paschall, filed the above-captioned social security appeal on September 19, 2014, and was granted permission to proceed in forma pauperis . (Doc. nos. 1, 2, 4.) Thereafter, the Acting Commissioner filed her answer and submitted the transcript of the administrative proceedings. (Doc. nos. 9, 10.) On January 12, 2015, the Court issued a Briefing Order in which Plaintiff was directed to "serve and file a brief setting forth all errors which Plaintiff contends entitle him to relief" within thirty days. (Doc. no. 11, p. 1.) When Plaintiff failed to file his brief by the stated deadline, the Court entered an Order on February 19, 2015 directing Plaintiff to show cause within 14 days why his case should not be dismissed for failure to prosecute. (Doc. no. 12.) Receiving no response to the Show Cause Order, the Court recommended dismissal of the case on March 10, 2015. (See doc. no. 13.)
Faced with dismissal of her client's case, counsel decided to respond to the Court. (See doc. no. 15.) Counsel acknowledges an order directing Plaintiff to file a brief was filed on January 12, 2015, but claims she was unaware a brief had not been filed until she received the March 10th recommendation for dismissal. In fact, Plaintiff's counsel concedes that she "did not read the show cause order." (Id. at 2.) Counsel states that she usually files the brief with the complaint. (Id. at 1.) However, as evidenced from the brief filed on March 20, 2015, (doc. no. 16), which cites to exhibits in the transcript filed on January 12, 2015, attaching a brief to the complaint used to commence the case in September 2014 could not have possibly complied with the requirements in the Briefing Order to provide specific citations to the record evidence in the transcript.
Plaintiff's counsel offers as an excuse that she was confused because she "does not file numerous federal appeals on a regular basis and was under the impression a brief had already been filed." (Doc. no. 15, pp. 2, 5.) Given that counsel has two other social security appeals currently pending before this Court - one in which she timely filed a brief after the entry of the Court's Briefing Order and one in which the Court had to issue a Show Cause Order just one day prior to the Show Cause Order in this case - a claimed lack of familiarity with federal procedure appears to be a tenuous excuse at best. See Whitaker v. Colvin, CV 114-029, doc. no. 13 (S.D. Ga. July 3, 2014); Washington v. Colvin, CV 114-134, doc. no. 11 (S.D. Ga. Feb. 18, 2015). Moreover, unlike this case, counsel timely responded to the Show Cause Order in the prior case when the Court notified her that a brief had not been filed. See Washington, CV 114-134, doc. no. 12 (S.D. Ga. Feb. 24, 2015).
Nevertheless, given the time limits for filing social security appeals in federal court after the denial of a claim by the Social Security Administration, the Court is mindful of the prejudice to Plaintiff if the Court were to dismiss his case. Although the Court does not condone counsel's dilatory actions in this case, upon consideration, the Court VACATES its recommendation for dismissal (doc. no. 13) and ACCEPTS Plaintiff's brief. The case shall proceed, and the Acting Commissioner shall have forty-five days from the date of this Order to file her brief in accordance with the Court's January 12th Briefing Order.
The Court cautions Plaintiff's counsel that claimed ignorance of procedures followed in federal court will not be accepted as an excuse for failing diligently prosecute a case. The Court expects members of its Bar to have a familiarity with its governing rules and procedures and certainly expects, at a minimum, that counsel will read and comply with orders issued by the Court.