UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION 

KRYSTAL SPICER, 

o/b/o L.T.S., a minor, 

 

 Plaintiff, Civil Action No. 15-11037 

 Honorable George Caram Steeh 

 Magistrate Judge David R. Grand 

v. 

 

COMMISSIONER OF 

SOCIAL SECURITY, 

 

 Defendant. 

__________________________________/ 

REPORT AND RECOMMENDATION TO DISMISS 

PLAINTIFF’S COMPLAINT [1] FOR FAILURE TO PROSECUTE 

I. RECOMMENDATION 

Krystal Spicer brings this action on behalf of her minor son, L.T.S. (“Plaintiff”),1

pursuant to 42 U.S.C. §405(g), seeking judicial review of the final decision of Defendant 

Commissioner of Social Security (“Commissioner”) denying Plaintiff’s application for 

Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”). Because 

Plaintiff failed to file his motion for summary judgment despite an order to show cause from the 

Court and otherwise offered no excuse for his failure to comply with the Court’s orders, and for 

the other reasons discussed below, the Court RECOMMENDS that Plaintiff’s complaint be 

DISMISSED WITH PREJUDICE for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 

II. REPORT 

A. Background 

On July 13, 2015, the Court directed the parties to file their respective motions for 

 

1 For convenience, the Court will refer to L.T.S., the minor child, as “Plaintiff” throughout this 

brief, although his mother, Krystal Spicer, is the named plaintiff in this action.

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summary judgment, Plaintiff by August 13, 2015, and the Commissioner by September 14, 2015. 

(Doc. #9). Plaintiff failed to file his motion. On August 21, 2015, the Court issued an Order to 

Show Cause, requiring Plaintiff to respond within fourteen (14) days, informing the Court as to 

why it should not recommend dismissal of his complaint pursuant to Fed. R. Civ. P. 41(b) for 

failure to prosecute and adhere to a Court order. (Doc. #10). To date, Plaintiff, who is 

represented by counsel, has neither responded to the Court’s Order to Show Cause nor filed his 

summary judgment motion. Notably, neither of the Court’s orders have been returned as 

undeliverable. 

B. Analysis 

Federal Rule of Civil Procedure 41 governs dismissals of actions. As to involuntary 

dismissals, Rule 41(b) provides: 

If the plaintiff fails to prosecute or to comply with these rules or a court 

order, a defendant may move to dismiss the action or any claim against it. 

Unless the dismissal order states otherwise, a dismissal under this 

subdivision (b) ... operates as an adjudication on the merits. 

Fed. R. Civ. P. 41(b). It is clear that, despite the somewhat permissive language of Rule 41(b), 

which contemplates a motion by a defendant, a federal court may sua sponte dismiss a claim for 

failure to prosecute or comply with an order. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-32 

(1962); Steward v. City of Jackson, 8 F. App’x 294, 296 (6th Cir. 2001). As the Link court 

explained, “Neither the permissive language of [Rule 41(b)] B which merely authorizes a motion 

by the defendant B nor its policy requires us to conclude that it was the purpose of the Rule to 

abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that 

have remained dormant because of the inaction or dilatoriness of the parties seeking relief.” Id. 

at 630. “The power to invoke this sanction is necessary in order to prevent undue delays in the 

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disposition of pending cases and to avoid congestion in the calendars of the District Courts.” Id.

at 629-30. 

The Sixth Circuit considers four factors in reviewing the decision of a district court to 

dismiss a case for failure to prosecute: 

(1) whether the party’s failure is due to willfulness, bad faith, or fault; (2) 

whether the adversary was prejudiced by the dismissed party’s conduct; 

(3) whether the dismissed party was warned that failure to cooperate could 

lead to dismissal; and (4) whether less drastic sanctions were imposed or 

considered before dismissal was ordered. 

Wu v. T.W. Wang, Inc., 420 F.3d 641, 643 (6th Cir. 2005) (quoting Knoll v. American Tel. & Tel. 

Co., 176 F.3d 359, 363 (6th Cir. 1999)). 

With respect to the first factor, it is not clear whether Plaintiff’s failure to take action in 

this case is due to willfulness, bad faith, or fault. However, the Court notes that, even after it 

provided Plaintiff with an extension beyond the original due date for the filing of his motion for 

summary judgment, and warned him that a failure to timely respond to the order to show cause 

might result in dismissal of his case for failure to prosecute (Doc. #10), Plaintiff failed to either 

file his motion or explain to the Court his inability to do so. Thus, the first2

 and third factors 

weigh in favor of dismissal. As to the second factor, there is little prejudice to the Commissioner 

here, as Plaintiff’s failure simply results in a delay of litigation. However, the fourth factor 

weighs heavily in favor of dismissal, as Plaintiff has been given a clear warning that his case 

would be dismissed if he did not file his brief or otherwise respond to this Court’s orders. Given 

Plaintiff’s failure to substantively participate in this case since the filing of the complaint, this 

 

2

 With respect to the first factor, just as in White v. Bouchard, 2008 WL 2216281, at *5 (E.D. 

Mich. May 27, 2008), “it is not clear whether plaintiff’s failure to prosecute is due to willfulness, 

bad faith or fault.” Id. Regardless, “defendants cannot be expected to defend an action which 

plaintiff has apparently abandoned, not to mention the investment of time and resources 

expended to defend this case.” Id. 

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Court sees no utility in imposing lesser sanctions. Under these circumstances, “dismissal is the 

only appropriate remedy” because Plaintiff “has effectively abandoned the case.” Morley v. 

Comm’r of Soc. Sec., 2013 WL 2051326, at *1 (E.D. Mich. May 14, 2013).3

The Court also notes that Plaintiff’s complaint gives no indication whatsoever as to why

he believes he is entitled to relief. Plaintiff cannot leave it to the Court to scour the record for 

evidence supporting his claims. See McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) 

(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed 

argumentation, are deemed waived. It is not sufficient for a party to mention a possible 

argument in the most skeletal way, leaving the court to ... put flesh on its bones.”) (internal 

quotations omitted). Nevertheless, the Court acknowledges its duty to conduct a de novo review 

of the record to ensure that substantial evidence supports the ALJ’s decision. In satisfaction of 

this requirement, the Court has reviewed the ALJ’s decision in this case and finds it to be 

thorough and supported by substantial evidence of record. 

In particular, the Court notes that the ALJ found Plaintiff to have the severe impairments 

of attention deficit hyperactivity disorder, learning disorder, and adjustment disorder. (Tr. 19). 

The ALJ then found that Plaintiff’s impairments do not meet or medically equal a listed 

 

3

 This outcome is consistent with the prevailing practice throughout this district. See, e.g., 

Gayles v. Comm’r of Soc. Sec., 2010 WL 3582553, at *1 (E.D. Mich. Sept. 9, 2010) (Rosen, J.) 

(adopting Report and Recommendation to dismiss case for failure to prosecute under 41(b) 

where plaintiff argued his failure was due to his failed attempts to find a lawyer); Mason v. 

Comm’r of Soc. Sec., 2013 WL 5423050, at *1 (E.D. Mich. Sept. 26, 2013) (Zatkoff, J.) 

(dismissing with prejudice for failure to prosecute under 41(b) where plaintiff failed to file 

motion for summary judgment, as directed by the court); McNaughton v. Comm’r of Soc. Sec., 

2009 WL 4646029, at *2 (E.D. Mich. Dec. 4, 2009) (Borman, J.) (same); Yax v. Comm’r of Soc. 

Sec., 2011 WL 3034914, at *1 (E.D. Mich. July 25, 2011) (Battani, J.) (same); Stennis v. 

Comm’r of Soc. Sec., 2012 WL 3758096, at *1 (E.D. Mich. Aug. 30, 2012) (Hood, J.) 

(dismissing with prejudice for failure to prosecute under Rule 41(b)); Smith v. Comm’r of Soc. 

Sec., 2012 WL 4511251, at *1-2 (E.D. Mich. Oct. 1, 2012) (Steeh, J.) (dismissing with prejudice 

for failure to prosecute under Rule 41(b)). 

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impairment, nor do they functionally equal a listed impairment. (Tr. 19-33). Specifically, the 

ALJ found that Plaintiff has a less than marked limitation in all six functional equivalence 

domains – a finding that is supported by substantial evidence. (Tr. 26-32). 

In the domain of acquiring and using information, as the ALJ noted, Plaintiff testified that 

he likes reading and math and has no problems with these subjects. (Tr. 27, 44). Additionally, 

the ALJ noted that at the time of the administrative hearing, Plaintiff was no longer in special 

education classes but, rather, was merely in a small “pull out” group designed to provide him 

additional support in certain areas. (Tr. 27, 164). And, the consultative examiner, Dr. Boneff, 

found no significant cognitive impairments or learning disabilities, noting that Plaintiff’s history 

of behavior problems and hyperactivity was likely secondary to entry into kindergarten at a very 

young age, removal from his parents’ care, and the recent birth of a sibling. (Tr. 23, 264-67). In 

the domain of attending and completing tasks, the ALJ also found Plaintiff’s limitation less than 

marked, noting that he is able to follow his mother’s directives to clean his room, take the trash 

out, and set the table, and can pay attention for 20 minutes when reading a book. (Tr. 28, 47, 

64). Similarly, the ALJ found Plaintiff to have a less than marked limitation in the domain of 

interacting and relating with others, noting that he testified that he has friends at school and was 

able to promptly answer the questions at the administrative hearing. (Tr. 29-30, 49-50). In the 

domain of moving about and manipulating objects, the ALJ found Plaintiff’s limitation less than 

marked, noting that he can ride a bike, throw and kick a ball, and type on the computer. (Tr. 31, 

52). The ALJ also found Plaintiff to have a less than marked limitation in the domain of caring 

for himself, noting that he washes his face, brushes his teeth, and gets himself dressed. (Tr. 32, 

52-53). And, finally, in the domain of health and physical well-being, the ALJ found Plaintiff’s 

limitation less than marked, noting that, aside from having difficulty sleeping, he has no other 

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health concerns. (Tr. 32). 

Based on a thorough review of the record, the Court concludes that the ALJ’s reasons, 

and her ultimate decision finding Plaintiff not disabled, are both supported by substantial 

evidence of record. Therefore, the ALJ’s decision should be affirmed. See Longworth v. 

Comm’r Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005) (judicial review under this statute is 

limited in that the court “must affirm the Commissioner’s conclusions absent a determination 

that the Commissioner has failed to apply the correct legal standard or has made findings of fact 

unsupported by substantial evidence in the record”) (internal citations omitted); Cutlip v. Sec’y of 

Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (if the Commissioner’s decision is 

supported by substantial evidence, “it must be affirmed even if the reviewing court would decide 

the matter differently and even if substantial evidence also supports the opposite conclusion”) 

(internal citations omitted). 

For all of the above reasons, the Court recommends dismissal of Plaintiff’s complaint 

with prejudice. 

III. CONCLUSION 

For the foregoing reasons, the Court RECOMMENDS dismissing Plaintiff’s complaint 

[1] WITH PREJUDICE for failure to prosecute pursuant to Fed. R. Civ. P. 41(b). 

Dated: September 23, 2015 s/David R. Grand 

Ann Arbor, Michigan DAVID R. GRAND 

 United States Magistrate Judge 

 

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NOTICE TO THE PARTIES REGARDING OBJECTIONS 

The parties to this action may object to and seek review of this Report and 

Recommendation, but are required to act within fourteen (14) days of service of a copy hereof as 

provided for in 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to file specific 

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 

(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir.1991); United States v. Walters, 

638 F.2d 947, 949–50 (6th Cir.1981). The filing of objections which raise some issues, but fail 

to raise others with specificity, will not preserve all the objections a party might have to this 

Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.1991); 

Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to 

E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this magistrate judge. A 

party may respond to another party’s objections within 14 days after being served with a copy. 

See Fed. R. Civ. P. 72(b)(2); 28 U.S.C. §636(b)(1). Any such response should be concise, and 

should address specifically, and in the same order raised, each issue presented in the objections. 

CERTIFICATE OF SERVICE

 The undersigned certifies that the foregoing document was served upon counsel of record 

and any unrepresented parties via the Court’s ECF System to their respective email or First Class 

U.S. mail addresses disclosed on the Notice of Electronic Filing on September 23, 2015. 

 s/Eddrey O. Butts 

 EDDREY O. BUTTS 

 Case Manager

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