1 Michael J. Astrue has been appointed as the new Commissioner of Social Security,

effective February 12, 2007, and is therefore substituted as Defendant in this matter for Jo Anne B.

Barnhart, per FED. R. CIV. P. 25(d)(1).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

SAN ANGELO DIVISION

§

DEBRA K. GODFREY, §

§

 Plaintiff, §

§

vs. § Civil Action No. 6:06-CV-0002-BI

§ ECF

§

MICHAEL J. ASTRUE1

, §

Commissioner of Social Security, §

§

 Defendant. §

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the court upon Plaintiff’s Motion to Dismiss Complaint filed

January 31, 2007 (Doc. 34). Plaintiff is proceeding pro se and in forma pauperis in this matter.

Plaintiff filed her complaint on January 9, 2006, seeking review of the decision of the Commissioner

denying her application for a period of disability and disability insurance benefits under Title II of

the Social Security Act. Plaintiff and Defendant each consented to having the United States

Magistrate Judge conduct all further proceedings in this matter on October 17, 2006, and on

October 27, 2006, respectively (Docs. 28, 29). 

I. PROCEDURAL HISTORY

 The United States District Judge, pursuant to 28 U.S.C. § 636(b), referred this matter to the

United States Magistrate Judge for report and recommendation, proposed findings of fact and

 

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conclusions of law, and a proposed judgment. Plaintiff filed her complaint on January 9, 2006.

Upon Plaintiff’s application to proceed in forma pauperis, the court entered an Order Permitting

Filing In Forma Pauperis and directing the issuance of process on June 15, 2006 (Doc. 14).

On August 1, 2006, the court entered an Order to Show Cause warning Plaintiff that in order

to avoid a recommendation to the United States District Judge that this matter be dismissed without

prejudice, the Plaintiff should either effect service or show good cause for failure to serve by

Monday, August 21, 2006. Plaintiff thereafter effected service and Defendant filed her answer and

a transcript of the administrative proceeding (Docs. 20, 23). On October 4, 2006, the court entered

a scheduling order setting forth the briefing schedule in this case.

Plaintiff moved this court for an extension of time in which to file her brief on October 31,

2006. The court granted Plaintiff’s motion and permitted her until January 8, 2007, to file her initial

brief. Plaintiff failed to timely file her brief, and the court entered a second Order to Show Cause

on January 17, 2007 (Doc. 33). On January 31, 2007, Plaintiff filed a Motion to Dismiss Complaint,

asking that the court dismiss her complaint as she has not been able to obtain counsel in this matter

(Doc. 34). Defendant has not filed a response to her motion.

II. ANALYSIS

Pursuant to FED.R.CIV. P. 41(a)(1)and(2), the court may dismiss an action upon the motion

of the Plaintiff where such motion is not opposed by the Defendant, “upon such terms and conditions

as the court deems proper.” Unless otherwise specified, such a dismissal is generally without

prejudice. FED. R. CIV. P. 41(a)(2).

Plaintiff has voluntarily moved to dismiss her case before this court. She has not filed her

opening brief. Although Defendant filed an answer and the transcript of the administrative

proceedings, he has not filed his brief. The court has considered Plaintiff’s request to dismiss her

 

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complaint, which Defendant has not opposed. The court finds that Plaintiff’s motion is well-taken

and should be granted and that this case should be dismissed without prejudice. 

III. CONCLUSION

Based upon the foregoing discussion of the issues, the evidence, and the law, this court finds

that Plaintiff’s Motion to Dismiss filed January 31, 2007 (Doc. 34), should be GRANTED and

Plaintiff’s complaint filed January 9, 2006 (Doc. 1), should be DISMISSED WITHOUT

PREJUDICE.

SO ORDERED.

DATED this 26th day of February, 2007.

_____________________________________

PHILIP R. LANE

UNITED STATES MAGISTRATE JUDGE

 

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