United States District Court, S.D. Georgia, Augusta Division
DANA M. ROLLAND, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS UNITED STATES MAGISTRATE JUDGE.
filed the above-captioned social security appeal pro
se on August 21, 2018, and was granted permission to
proceed in forma pauperis. (Doc. nos. 1-3.)
Thereafter, the Commissioner filed her answer and submitted
the transcript of the administrative proceedings. (Doc. nos.
10, 11.) On December 12, 2018, 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. 12, p. 1.) On January 11, 2019, the deadline for
Plaintiff to file her brief, the case was stayed. (Doc. no.
13.) On February 1, 2019, the stay was lifted. (Doc. no. 14.)
On February 8, 2019, the Court extended Plaintiff's
deadline to file her brief until February 22, 2019, out of
consideration of the stay. (Doc. no. 15.) When Plaintiff
failed to file her brief by the extended deadline, the Court
entered an Order on February 27, 2019, directing Plaintiff to
show cause within 14 days why her case should not be
dismissed for failure to prosecute. (Doc. no. 16.) Plaintiff
did not respond to the show cause 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 Fed.Appx. 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 Fed.Appx.
654, 655 (11th Cir. 2009) (citing Moon v. Newsome,
863 F.2d 835, 837 (11th Cir. 1989)); see also Loc.
R. 41.1(b) (holding court may dismiss an action sua
sponte for “willful disobedience or neglect of any
order of the Court”).
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 Fed.Appx. 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 ...