United States District Court, N.D. Texas, Wichita Falls Division
JOHN L. MAXWELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
Ray, Jr. UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff's Complaint (ECF No. 1), filed
August 17, 2017. After considering the pleadings and
applicable law, the undersigned RECOMMENDS
that Chief United States District Judge Barbara M.G. Lynn
DISMISS without prejudice Plaintiff's
Complaint (ECF No. 1) pursuant to Federal Rule of Civil
Procedure 41(b) for failure to prosecute and failure to
comply with the Court's orders.
August 17, 2017, Plaintiff John Maxwell
(“Plaintiff”) filed a pro se complaint
against Nancy A. Berryhill, the Acting Commissioner of the
Social Security Administration (“Defendant”),
seeking disability benefits. ECF No. 1. Thereafter, on
October 24, 2017, Defendant filed her answer together with a
certified copy of the administrative record. ECF Nos. 10 and
12. On October 24, 2017, the Court issued its Order Directing
Filing of Briefs (ECF No. 13) requiring that, inter
alia, Plaintiff file a brief, within forty days, that
sets forth all of the errors which Plaintiff contends entitle
him to relief. The Clerk of Court mailed the order directing
filing of briefs on the same day. Plaintiff failed to file a
brief by the deadline, and the Court sua sponte
extended Plaintiff's deadline to February 5, 2018. ECF
No. 14. Because Plaintiff failed to file his brief by that
date, the Court again sua sponte extended
Plaintiff's deadline to April 11, 2018, and warned
Plaintiff that failure to follow the Court's orders could
result in a recommendation that his case be dismissed. ECF
No. 36. As of today's date, Plaintiff has not responded
to or complied with the Court's orders. Plaintiff has
wholly failed to comply with the Court's orders and has
neither filed a brief in accordance with the Court's
Orders nor sought an extension of time to do so.
LEGAL STANDARD AND ANALYSIS
to Federal Rule of Civil Procedure 41(b), a district court
may dismiss a claim for failure to prosecute. Boudwin v.
Graystone Ins. Co., 756 F.2d 399, 401 (5th Cir. 1985).
“Although the rule speaks of dismissal pursuant to a
motion by the defendant, a district court may dismiss sua
sponte. . . .” Id. (citing Fed.R.Civ.P.
41(b)). “This authority flows from the court's
inherent power to control its docket and prevent undue delays
in the disposition of pending cases.” Id.
(citing Link v. Wabash Railroad Co., 370 U.S. 626
(1962)). Dismissal pursuant to Rule 41(b) may be with or
without prejudice. Long v. Simmons, 77 F.3d 878, 880
(5th Cir. 1996). However, dismissal with prejudice is an
extreme sanction to be used only when the
“‘plaintiff's conduct has threatened the
integrity of the judicial process [in a way which] leav[es]
the court no choice but to deny that plaintiff its
benefits.'” McNeal v. Papasan, 842 F.2d
787, 790 (5th Cir. 1988) (quoting Rogers v. Kroger
Co., 669 F.2d 317, 321 (5th Cir. 1982)). “A
dismissal with prejudice is appropriate only if the failure
to comply with the court order was the result of purposeful
delay or contumaciousness and the record reflects that the
district court employed lesser sanctions before dismissing
the action.” Long, 77 F.3d at 880.
has wholly failed to comply with all Court orders directing
that he file a brief in support of his claims against
Defendant. “The Court is not required to delay the
disposition of this case until such time, if ever, as
Plaintiff decides to comply with the Court's orders and
file the brief necessary for the Court to adjudicate his
claims.” McMillan v. Colvin, No.
3:12-CV-4729-N-BN, 2013 WL 5637378, at *2 (N.D. Tex. Oct. 15,
2013). In his Complaint, Plaintiff claims that he received
letters from the Social Security Administration that he was
no longer qualified to receive social security benefits and
owes the Social Security Administration overpayment for the
benefits he received in the past. ECF No. 1 at 3.
Plaintiff's Complaint does not set forth any alleged
errors that entitle him to relief or the specific issues he
presents to the Court for review, despite the Court's
admonitions to Plaintiff that his failure to comply with the
Court's orders would result in dismissal of his case.
Because Plaintiff has failed to follow the Court's
orders, despite several opportunities to do so, the case is
subject to dismissal. Choate v. Astrue, No.
3:13-CV-0269-L (BH), 2013 WL 12129286, at *1 (N.D. Tex. July
3, 2013), report and recommendation adopted, No.
3:13-CV-0269-L, 2013 WL 12129287 (N.D. Tex. July 23, 2013).
is cautioned that although the recommended dismissal is
without prejudice, the effect of dismissing this action for
failure to prosecute and to obey the Court's orders may
subject any subsequent complaint he files regarding the
claims in the instant action to a statute of limitations
defense. Dixon v. Colvin, No. 3:15-CV-263-B-BN, 2015
WL 899019, at *1 (N.D. Tex. Mar. 3, 2015) (citing 42 U.S.C.
§ 405(g) (a claimant must commence a civil action
seeking judicial review of a final decision of the
Commissioner “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”);
Bowen v. City of New York, 476 U.S. 467, 478-80
(1986) (the 60-day requirement in § 405(g) is not
jurisdictional, may be waived by the parties, and is subject
to the doctrine of equitable tolling)). Because
Plaintiff's claims will likely be time-barred, the
undersigned recommends that Chief Judge Lynn dismiss the case
without prejudice to Plaintiff's right to reopen the case
provided that he files a motion to reopen along with a brief
in support of his Complaint that complies with the
Court's September 14, 2017 Order Directing Filing of
Briefs (ECF No. 14) on or before 30 days from the date of
Chief Judge Lynn's order.
foregoing reasons, the undersigned
RECOMMENDS that Chief Judge Lynn
DISMISS without prejudice Plaintiffs
Complaint (ECF No. 1) and all of Plaintiffs claims pursuant
to Federal Rule of Civil Procedure 41(b) for failure to
prosecute and failure to comply with the Court's orders.
of this Findings, Conclusions, and Recommendation shall be
served on all parties in the manner provided by law. Any
party who objects to any part of this Findings, Conclusions,
and Recommendation must file specific written objections
within 14 days after being served with a copy. See
28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b)(1). In
order to be specific, an objection must identify the specific
finding or recommendation to which objection is made, state
the basis for the objection, and specify the place in the
magistrate judge's findings, conclusions, and
recommendation where the disputed determination is found. An
objection that merely incorporates by reference or refers to
the briefing before the magistrate judge is not specific.
Failure to file specific written objections will bar the
aggrieved party from appealing the factual findings ...