Report and Recommendation

Sue Sponte Dismissal

1 Gayles v. Comm’r; 09-11914

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

RONALD GAYLES, Case No. 09-11914

Plaintiff, Gerald E. Rosen

v. United States District Judge

COMMISSIONER OF Michael Hluchaniuk

SOCIAL SECURITY, United States Magistrate Judge

Defendant.

 /

REPORT AND RECOMMENDATION

DISMISSAL FOR FAILURE TO PROSECUTE AND

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (Dkt. 19)

I. PROCEDURAL HISTORY

This is a social security disability appeal filed on May 20, 2009. (Dkt. 1).

On May 20, 2009, District Judge Gerald E. Rosen referred this matter to the

undersigned for all pretrial proceedings pursuant to 28 U.S.C. § 636. (Dkt. 4). On

August 28, 2009, the Court issued an order setting a deadline for plaintiff to file a

motion for summary judgment by September 25, 2009. (Dkt. 14). Plaintiff did not

file a motion for summary judgment and did not move for an extension or other

relief. After receiving two extensions, the government filed its motion for

summary judgment on December 23, 2009. (Dkt. 19). In each order granting the

government’s request for an extension, which were mailed to plaintiff by the Court,
Report and Recommendation

Sue Sponte Dismissal

2 Gayles v. Comm’r; 09-11914

plaintiff was also given an extension of time to file a reply brief. (Dkt. 16, 18). 

Plaintiff’s reply was due by January 6, 2010. (Dkt. 18). Plaintiff did not, however,

file any reply to the government’s motion. On May 15, 2010, the Court issued an

order for plaintiff to show cause why he failed to comply with the Court’s

scheduling order and warning that failure to comply with the order to show cause

may result in dismissal of plaintiff’s complaint. (Dkt. 21). On June 7, 2010,

plaintiff filed a response in which he stated that he has been trying to find a lawyer,

lost track of time, and forgot to file his brief. (Dkt. 22). Plaintiff also noted that he

has filed another social security disability claim and has a lawyer representing him

in that case. Id. 

For the reasons set forth below, the undersigned RECOMMENDS that

plaintiff’s complaint be DISMISSED with prejudice for failure to prosecute. The

undersigned further RECOMMENDS that defendant’s motion for summary

judgment be DENIED as moot.

II. ANALYSIS AND CONCLUSION

“The authority of a federal trial court to dismiss a plaintiff’s action with

prejudice because of his failure to prosecute cannot seriously be doubted.” Link v.

Wabash R. Co., 370 U.S. 626, 629 (1962). “The power to invoke this sanction is

necessary in order to prevent undue delays in the disposition of pending cases and

to avoid congestion in the calendars of the District Courts.” Link, 370 U.S. at
Report and Recommendation

Sue Sponte Dismissal

3 Gayles v. Comm’r; 09-11914

629-630. “[D]istrict courts possess broad discretion to sanction parties for failing

to comply with procedural requirements.” Tetro v. Elliott Popham Pontiac,

Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988, 991 (6th Cir. 1999),

citing, Carver v. Bunch, 946 F.2d 451, 453 (6th Cir.1991). Further, “a district

court can dismiss an action for noncompliance with a local rule ... if the behavior

of the noncomplying party rises to the level of a failure to prosecute under Rule

41(b) of the Federal Rules of Civil Procedure.” Tetro, 173 F.3d at 992. 

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

dismissals, it 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) and any dismissal not under this rule - except one for

lack of jurisdiction, improper venue, or failure to join a

party under Rule 19 - operates as an adjudication on the

merits.

Fed.R.Civ.P. 41(b). “Neither the permissive language of [Rule 41(b)] – which

merely authorizes a motion by the defendant – 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.” Link v.

Wabash R. Co., 370 U.S. 626, 630 (1962). “The authority of a federal trial court to
Report and Recommendation

Sue Sponte Dismissal

4 Gayles v. Comm’r; 09-11914

dismiss a plaintiff’s action with prejudice because of his failure to prosecute cannot

seriously be doubted.” Link, 370 U.S. at 629; see also Carter v. City of Memphis,

Tenn., 636 F.2d 159, 161 (6th Cir. 1980) (“It is clear that the district court does

have the power under [Fed.R.Civ.P. 41(b)] to enter a sua sponte order of

dismissal.”) (citing Link). Moreover, “district courts possess broad discretion to

sanction parties for failing to comply with procedural requirements.” Tetro v.

Elliott Popham Pontiac, Oldsmobile, Buick, and GMC Trucks, Inc., 173 F.3d 988,

991 (6th Cir. 1999), citing, Carver v. Bunch, 946 F.2d 451, 453 (6th Cir. 1991). 

And, “a district court can dismiss an action for noncompliance with a local rule

only if the behavior of the noncomplying party rises to the level of a failure to

prosecute under Rule 41(b) of the Federal Rules of Civil Procedure.” Tetro, 173

F.3d at 992.

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), citing, Knoll v.

American Tel. & Tel. Co., 176 F.3d 359, 363 (6th Cir. 1999). In this case, the
Report and Recommendation

Sue Sponte Dismissal

5 Gayles v. Comm’r; 09-11914

Court warned plaintiff that his case would be dismissed with prejudice if he failed

to satisfactorily respond to the order to show cause. (Dkt. 21). Thus, this factor

weighs in favor of dismissal. With respect to the first factor, just as in White v.

Bouchard, 2008 WL 2216281, *5 (E.D. Mich. 2008), “it is not clear whether

plaintiff’s failure to prosecute is due to willfulness, bad faith or fault.” Id. 

Regardless, “defendant[] cannot be expected to defend an action,” that plaintiff has

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

expended to defend this case.” Id. Thus, the first and third factors weigh in favor

of dismissal. Finally, given plaintiff’s failure to substantively participate in this

case since the filing of the complaint, the undersigned sees no utility in considering

or imposing lesser sanctions. Thus, none of the factors weigh against dismissal for

failure to prosecute.

It is true that “district courts should be especially hesitant to dismiss for

procedural deficiencies where, as here, the failure is by a pro se litigant.” White, at

*8, quoting, Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). However, “dismissal

is appropriate when a pro se litigant has engaged in a clear pattern of delay.” 

Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991). Indeed, a sua sponte dismissal

may be justified by a plaintiff’s “apparent abandonment of [a] case.” White, at *5,

citing, Washington v. Walker, 734 F.2d 1237, 1240 (7th Cir. 1984). While the

undersigned is sympathetic to plaintiff’s situation, he failed to file an initial brief,
Report and Recommendation

Sue Sponte Dismissal

6 Gayles v. Comm’r; 09-11914

and failed to file a reply to defendant’s brief, despite being given several

opportunities to do so. Plaintiff also failed to file any substantive response to the

order to show cause. Under the circumstances, in the view of the undersigned,

dismissal is appropriate.

III. RECOMMENDATION

Based on the foregoing, the undersigned RECOMMENDS that plaintiff’s

complaint be DISMISSED with prejudice. The undersigned further recommends

that defendant’s motion for summary judgment be DENIED as moot.

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

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that 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. Sec’y of Health

and Human Servs., 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 Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.
Report and Recommendation

Sue Sponte Dismissal

7 Gayles v. Comm’r; 09-11914

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: June 8, 2010 s/Michael Hluchaniuk 

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on June 8, 2010, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system which will send electronic notification

to the following: Theresa M. Urbanic, AUSA, and Commissioner of Social

Security and I certify that I have mailed by United States Postal Service the paper

to the following non-ECF participant: Ronald Gayles, 4805 Toledo, Detroit, MI

48209.

s/Darlene Chubb 

Judicial Assistant

(810) 341-7850

darlene_chubb@mied.uscourts.gov