United States District Court, S.D. Georgia, Augusta Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE.
filed the above-captioned social security appeal pro
se on May 18, 2017, and was granted permission to
proceed in forma pauperis. (Doc. nos. 1, 2, 3.)
Thereafter, the Commissioner filed her answer and submitted
the transcript of the administrative proceedings. (Doc. nos.
6, 7.) On August 30, 2017, 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 her to relief” within 30 days. (Doc. no. 8, p.
1.) When Plaintiff failed to file her brief by the stated
deadline, the Court entered an Order on October 4, 2017
directing Plaintiff to show cause within 14 days why her case
should not be dismissed for failure to prosecute. (Doc. no.
entry of that show cause order, Plaintiff filed a motion for
extension of time to file her brief, indicating she was
actively seeking counsel to represent her in this case and
requesting a thirty to forty-five day extension of the
briefing deadline. (Doc. no. 10.) The Court granted Plaintiff
an extension through and including December 5, 2017 to file
her brief. (Doc. no. 11.) When Plaintiff failed to file her
brief by the extended deadline, the Court entered another
Order on December 6, 2017 directing Plaintiff to show cause
within 14 days why her case should not be dismissed for
failure to prosecute. (Doc. no. 12.)
entry of that second show cause order, Plaintiff filed a
“Letter of Brief” informing the Court she could
not obtain counsel, requesting her “case . . . be
docketed so that [she] may represent [herself], ” and
asking the Court to “grant the extension mentioned
above.” (Doc. no. 13.) However, Plaintiff's case
had already been docketed, she was already representing
herself, and there was no specific extension requested in the
letter. Nevertheless, the Court gave Plaintiff one final
extension, ordering her to file her brief within thirty days
of its January 4, 2017 Order. (Doc. no. 14.) The Court warned
Plaintiff if she failed to file her brief within the extended
time period, it would presume she desired to have her case
voluntarily dismissed and would recommend dismissal of this
action. (Id. at 2.) Plaintiff did not respond to the
Court's January 4th Order; nor has she filed her brief,
explained her failure to do so, or communicated with the
Court in any way.
district court has authority to manage its docket to
expeditiously resolve cases, and this authority includes the
power to dismiss a case for failure to prosecute or failure
to comply with a court order. Equity Lifestyle Props.,
Inc. v. Florida Mowing & Landscape Serv., Inc., 556
F.3d 1232, 1240 (11th Cir. 2009) (citing Fed.R.Civ.P. 41(b));
see also Eades v. Alabama Dep't of Human Res.,
298 F. App'x 862, 863 (11th Cir. 2008) (“District
courts possess the ability to dismiss a case . . . for want
of prosecution based on two possible sources of authority:
Fed.R.Civ.P. 41(b) or their inherent authority to manage
their dockets.”). Moreover, the Local Rules of the
Southern District of Georgia dictate that an “assigned
Judge may, after notice to counsel of record, sua
sponte . . . dismiss any action for want of prosecution,
with or without prejudice . . . [for] failure to prosecute a
civil action with reasonable promptness.” Loc. R.
41.1(c). Finally, dismissal without prejudice is generally
appropriate pursuant to Rule 41(b) where a plaintiff has
failed to comply with a court order, “especially where
the litigant has been forewarned.” Owens v.
Pinellas Cnty. Sheriff's Dep't, 331 F. App'x
654, 655 (11th Cir. 2009) (citing Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989)); see also Loc.
R. 41.1(b) (Court may dismiss an action sua sponte
for “willful disobedience or neglect of any order of
Plaintiff's failure to file her brief, respond to the
show cause order, or communicate with the Court amounts not
only to a failure to prosecute, but also an abandonment of
her case. This is precisely the type of neglect contemplated
by the Local Rules. Furthermore, because Plaintiff is
proceeding IFP, the Court finds the imposition of monetary
sanctions is not a feasible sanction.
the dismissal entered here is without prejudice,
Plaintiff should consider that the practical effect of
dismissal may be with prejudice. This is because a claimant
must commence a civil action seeking review of a final
decision of the Acting Commissioner of Social Security
“within sixty days after the mailing to him of notice
of such decision or within such further time as the
Commissioner of Social Security may allow.” 42 U.S.C.
§ 405(g). This sixty-day deadline, however, “is
not jurisdictional, but is a statute of limitations which is
waivable by the parties and subject to the doctrine of
equitable tolling.” Scott v. Colvin, Civ. A.
No. 13-0106, 2013 WL 2452313, at *2 n.2 (S.D. Ala. June 5,
2013) (citing Bowen v. City of New York, 476 U.S.
467, 478-80 (1986).) Nevertheless, the law is clear that the
mere fact a complaint is dismissed without prejudice does not
permit a plaintiff to later file a complaint outside the
statute of limitations. Christides v. Commissioner of
Soc. Sec, 478 F. App'x 581, 584 (11th Cir. 2012)
(citing Bost v. Federal Express Corp., 372 F.3d
1233, 1242 (11th Cir. 2004).)
reasons set forth herein, the Court REPORTS
and RECOMMENDS this case be
DISMISSED without prejudice under Loc. R.
41.1 due to Plaintiffs failure to prosecute this action and
this civil action be CLOSED.
REPORTED and RECOMMENDED.
Unless the Court specifies
otherwise, a dismissal for failure to prosecute operates as
an adjudication on the merits. See ...