United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
M. Purcell, Judge
filed this action pursuant to 42 U.S.C. §405(g) seeking
to appeal the final decision of Defendant Commissioner
denying her application for disability benefits. The matter
has been referred to the undersigned Magistrate Judge for
initial proceedings consistent with 28 U.S.C.
initiated this action on January 8, 2018. Doc. No. 1. After
delays in completing service of process on the Commissioner,
see Doc. Nos. 4-10, 12-16, Plaintiff's Opening
Brief was initially due no later than Tuesday, January 2,
2019. Doc. No. 22. On December 28, 2018, Plaintiff requested
an extension of time indicating she intended to meet with an
attorney after the first of the year. Doc. No. 24. The Court
granted Plaintiff's request and ordered Plaintiff to file
her Opening Brief no later than February 12, 2019. Doc. No.
Plaintiff's failure to comply with the Court's Order
and file an Opening Brief, the undersigned issued an Order to
Show Cause on March 15, 2019, directing Plaintiff to show
cause why her action should not be dismissed for failure to
prosecute and/or failure to comply with the Court's
orders. Doc. No. 27. To date, Plaintiff has neither filed an
Opening Brief, nor responded to the Court's Order to Show
Standard for Dismissal
Fed.R.Civ.P. 41(b), the Court may dismiss an action, sua
sponte, if “the plaintiff fails to prosecute or to
comply with . . . a court order.” Fed.R.Civ.P. 41(b);
see also Olsen v. Mapes, 333 F.3d 1199, 1204 n.3
(10th Cir. 2003) (holding that despite Rule 41(b)'s
reference to a defendant's motion, “the Rule has
long been interpreted to permit courts to dismiss actions
sua sponte for a plaintiff's failure to
prosecute or comply with the rules of civil procedure or
court's orders”). “The ‘authority of a
court to dismiss sua sponte for lack of prosecution
has generally been considered an inherent power, governed . .
. by the control necessarily vested in courts to manage their
own affairs so as to achieve the orderly and expeditious
disposition of cases.'” U.S. ex rel. Jimenez v.
Health Net, Inc., 400 F.3d 853, 855 (10th Cir. 2005)
(quoting Link v. Wabash R.R. Co., 370 U.S. 626,
630-31 (1962)). “The federal courts are not a
playground for the petulant or absent-minded; our rules and
orders exist, in part, to ensure that the administration of
justice occurs in a manner that most efficiently utilizes
limited judicial resources.” Id. at 856.
court should impose “dismissal for failure to prosecute
. . . only after careful exercise of judicial discretion,
” “dismissal is an appropriate disposition
against a party who disregards court orders and fails to
proceed as required by court rules.” Id. at
855. However, because dismissal with prejudice is an
“extreme sanction, ” appropriate only in cases of
willful misconduct, the court must consider: (1) “the
degree of actual prejudice” to defendants; (2)
“the amount of interference with the judicial
process”; (3) Plaintiff's
“culpability”; (4) “whether the court
warned [Plaintiff] in advance that dismissal of the action
would be a likely sanction for noncompliance”; and (5)
if “lesser sanctions” would be more effective.
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992) (quotations omitted); see also Gripe v. City of
Enid, 312 F.3d 1184, 1188 (10th Cir. 2002) (holding that
when a court dismisses a complaint with prejudice under Rule
41(b), it should consider the
(quoting Mobley v. McCormick, 40 F.3d 337, 340-41
(10th Cir. 1997)).
Plaintiff proceeds without an attorney, she bears the
responsibility of prosecuting this case with due diligence.
The Court must liberally construe pro se filings;
however, pro se status does not excuse the
obligation of any litigant to comply with the same rules of
procedure that govern other litigants. Green v.
Dorrell, 969 F.2d 915, 917 (10th Cir. 1992); see
also Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
1994). Plaintiff has disregarded this Court's explicit
Orders regarding the filing of an Opening Brief, thereby
unduly delaying resolution of this matter.
Federal Rules of Civil Procedure give a district court ample
tools to deal with a recalcitrant litigant, including
dismissal pursuant to Rule 41(b). Jones v. Thompson,
996 F.2d 261, 264 (10th Cir. 1993). Applying the
Ehrenhaus factors, supra., the undersigned
finds Plaintiff's failure to prosecute and comply with
the Court's Order warrants dismissal.
the first factor, Plaintiff's failure to file an Opening
Brief adversely affects the Commissioner in this matter by
keeping the administrative appeal in limbo. Moreover,
“the Commissioner . . . has necessarily been prejudiced
to some extent by [Plaintiff's] failure to prosecute this
matter.” Alwert v. Comm'r of Soc. Sec.
Admin., No. CIV-16-1256-F, 2017 WL 3474082, at *4 (W.D.
Okla. July 14, 2017). “She ‘has invested time and
effort into researching and preparing an answer in this case
and into preparing the administrative record and converting
it into a format which is compatible with filing in the
court's electronic case filing system.'”
Id. (quoting Crawford v. Colvin, No.
15-9312, 2016 WL 1701811, at *2 (D. Kan. Apr. 28, 2016).
“Similarly, ‘the Commissioner was required to
utilize resources to monitor and review each of the
court's orders and . . . determine whether any action on
her part was necessary or appropriate in the
circumstances.'” Id. (quoting
Crawford, 2016 WL 1701811, at *2). The absence of an
Opening Brief impedes the Court's and the parties'
ability to reach a fair and just resolution of
Plaintiff's claims. Plaintiff's inaction is
inconsistent with the true adjudication of an adverse and
continued noncompliance with the judicial process by failing
to comply with the Court's Orders flouts the Court's
authority, similar to the Tenth Circuit's determination
in Ehrenhaus. Ehrenhaus, 965 F.2d at 921.
Additionally, Plaintiff's persistent failure to comply
with the Court's Orders compels the Court's
continuous monitoring of this matter and unnecessary issuance
of orders, in turn disproportionately increasing the workload
of the Court and therefore interfering with the
administration of justice.
the docket does not indicate that any of the Orders regarding
Plaintiff's opportunity to file an Opening Brief and
avoid dismissal have been returned as undeliverable. Thus,
the undersigned can only conclude Plaintiff has willfully
refused to communicate with the Court and/or ...