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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BENJAMIN THOMAS III,

Case No. 09-13397

Plaintiff,

District Judge Lawrence P. Zatkoff

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF

SOCIAL SECURITY,

Defendant. /

REPORT AND RECOMMENDATION

On August 27, 2009, Plaintiff Benjamin Thomas III filed a pro se complaint under

42 U.S.C. § 405(g) seeking judicial review of the Commissioner’s decision that he was no

longer disabled as of March 1, 2004, and therefore not entitled to continuing benefits as

of that date. The case has been referred for a Report and Recommendation (“R&R”) on

dispositive matters, pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed

below, I recommend that the action be DISMISSED WITH PREJUDICE under

Fed.R.Civ.P. 41(b), for Plaintiff’s failure to prosecute. In the alternative, I recommend

that Defendant’s motion for summary judgment [DE #21] be GRANTED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Following an automobile accident in 1996, Plaintiff suffered a spinal cord injury

and a left knee anterior cruciate ligament (ACL) injury. As a result, he also suffered

partial paraplegia (Tr. 16). On November 16, 2000, the Commissioner found the Plaintiff

disabled as of August 22, 1996, and awarded disability benefits. The Commissioner

found that Plaintiff’s impairments met the “Listings,” § 1108 of 20 C.F.R. Part 404,

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Subpart P, Appendix 1 (20 C.F.R. 404.1520(d)).

Based on medical improvement, including resolution of the partial paraplegia

(Plaintiff was found able to ambulate, albeit with intermittent use of a cane), disability

benefits were terminated as of March 1, 2004. Administrative Law Judge (“ALJ”) Karen

Goheen held hearings on December 20, 2006 and March 20, 2007, and on September 14,

2007, she issued her decision that Plaintiff was not disabled as of March 1, 2004 (Tr. 14-

22). The Appeals Council denied Plaintiff’s request for review on June 19, 2009 (Tr. 6).

Plaintiff filed his complaint in this Court on August 27, 2009. The Defendant

responded with a motion to dismiss [Doc. #8] on the ground that the Plaintiff filed his

complaint after the 60-day statute of limitations set forth in 42 U.S.C. § 405(g). On

December 22, 2009, I ordered Plaintiff “to show cause in writing, on or before January

15, 2010, why this Court should not recommend dismissal of his case.” [Order to Show

Cause, Docket #9]. Plaintiff did not respond to the show cause order. Therefore, on April

8, 2010, I issued an R&R recommending that the complaint be dismissed as untimely.

Almost three weeks later, on April 27, 2010, Plaintiff filed a response to the show cause

order. On review, the District Judge agreed that the complaint was untimely by three

days, but under the totality of the circumstances, and in the interests of justice, denied the

motion to dismiss and equitably tolled the statute of limitations [Doc. #13].

I then ordered the Defendant to answer the complaint [Doc. #15] and when the

answer was filed, I issued a briefing schedule [Doc. #17] directing that Plaintiff file his

summary judgment motion by February 16, 2011. On that date, Plaintiff filed a motion to

extend time for filing his summary judgment motion [Doc. #19]. I granted that motion on

February 16, 2011, giving Plaintiff until March 16, 2011 to file [Doc. #20].

Despite the fact that I granted his motion to extend, Plaintiff did not file a

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summary judgment motion. On September 29, 2011–six months after the due date–I

ordered Plaintiff to “show cause in writing why the Court should not either dismiss the

case for failure to prosecute, or proceed to decide this case only on the administrative

record and the Commissioner’s brief.” [Doc. # ]. I also ordered that Plaintiff could, within

14 days, merely file a narrative statement of why he is entitled to continuing benefits:

“In the alternative, Plaintiff may, within 14 days of the date of this Order,

file his motion for summary judgment. Given that Mr. Thomas is not

represented by counsel, his motion does not have to be in a specific legal

format. He may, if he wishes, simply write a narrative statement of why he

thinks the ALJ was wrong in denying him benefits.” Id.

To date, Plaintiff has neither responded to the show cause order nor filed his

motion for summary judgment. The Commissioner file a motion on April 8, 2011.

II. LEGAL PRINCIPLES

The Court may dismiss a complaint for failure to prosecute pursuant to 

Fed.R.Civ.P. 41(b) and Rule 41.2 of the Local Rules of the Eastern District of Michigan. 

Mulbah v Detroit Board of Education, 261 F.3d 586, 589 (6th Cir. 2001).

Fed.R.Civ.P. 41(b) provides:

“(b) Involuntary Dismissal: Effect Thereof. For failure of the plaintiff to

prosecute or to comply with these rules or any order of court, a defendant

may move for dismissal of an action or of any claim against the defendant. 

Unless the court in its order for dismissal otherwise specifies, a dismissal

under this subdivision and any dismissal not provided for in this rule, other

than a dismissal for lack of jurisdiction, for improper venue, or for failure to

join a party under Rule 19, operates as an adjudication upon the merits.”

Rule 41(b) also permits the Court to dismiss a case sua sponte under its inherent

power: “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. 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 v. Wabash R. Co.

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370 U.S. 626, 629-630, 82 S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962).

L.R. 41.2, which permits dismissal for failure to prosecute on the court’s own

motion, states:

“[W]hen it appears that the court lacks subject matter

jurisdiction or that the parties have taken no action for a

reasonable time, the court may, on its own motion after

reasonable notice or on application of a party, enter an order

dismissing or remanding the case unless good cause is

shown.”

In the case of a pro se litigant, “the Court must take into consideration the

difficulties an individual faces in bringing forward their case without the benefit of

legal representation.” Bunting v. Hansen, 2007 WL 1582236, *2 (E.D.Mich.

2007). Nonetheless, because defendants are entitled “to a fair and timely resolution

of the litigation . . . pro se litigants are not to be accorded any special consideration

when they fail to adhere to readily-comprehended court deadlines.” Id.; Jourdan

v. Jabe, 951 F.2d 108, 110 (6th Cir.1991).

In determining whether to dismiss a complaint for failure to prosecute, the

Court generally looks to four factors for guidance: (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. Knoll v. American

Telephone & Telegraph Co., 176 F.3d 359, 363 (6th Cir. 1999). Typically, none of

the factors is outcome dispositive, and dismissal is entrusted to the discretion of

the Court. Id.

III. DISCUSSION

As to the first Knoll factor, and without addressing the issue of willfulness

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or bad faith, this pro se plaintiff is clearly at fault for not complying with the

scheduling order of February 16, 2011, in which I granted his request for extra

time, and the show cause order of September 29, 2011, in which I again afforded

him additional time to file, even though his brief was already six months late. In

addition, I specifically relaxed the formatting requirements in deference to his pro

se status, allowing him to file a narrative statement in lieu of a formal brief.

This Plaintiff has a troubling history of disregarding the orders of this

Court. He did not respond to the Defendant’s previous motion to dismiss, even

though I ordered him to do so. He did not respond timely to my previous show

cause order, filing a response only after I issued an R&R recommending the

dismissal of his case. After I entered a briefing schedule, he was able to request an

extension on the last day his brief was due. Almost a year has passed, and he has

still not filed anything, even though I generously gave him extra time in my latest

show cause order. I can only conclude that for whatever reason, the Plaintiff has no

interest in moving this case to resolution.

Looking at the second factor, there is no identifiable prejudice to the

Defendant at this point, beyond the lengthy passage of time. The third factor,

however, weighs heavily against the Plaintiff, since he was given very clear notice

in the show cause order of September 15, 2009 that his failure to take action could

lead to dismissal.

Finally, as to the fourth factor, this is not a case where, for example, an

attorney’s deficient performance can be sanctioned short of dismissing his or her

client’s case. See Mulbah, supra. Given the many accommodations that have been

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 The ALJ also accommodated Plaintiff’s pro se status by bifurcating the hearings.

At the first hearing in December of 2006, which dealt primarily with procedural issues,

the ALJ informed Plaintiff of his right to have an attorney and of some options for

representation (Tr. 298-99).The Plaintiff said that he would look into obtaining counsel

for the second hearing (Tr. 300). Nevertheless, at the second hearing in March of 2007,

the Plaintiff appeared without counsel or other representation.

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made for this Plaintiff1, and the warning given to him last September, the only

appropriate sanction is dismissal.

Numerous judges in this District have dismissed Social Security complaints

under Rule 41(b) where the Plaintiff has neither filed a summary judgment motion

nor responded to a show cause order. See Herbers v. Comm. of Soc. Sec., 2012 WL

12761 (E.D. Mich. 2012)(Cook, J.);Yax v. Comm. of Soc. Sec., 2011 WL 3034914

(E.D. Mich. 2011)(Battani, J.); Gayles v. Comm. of Soc. Sec., 2010 WL 3582553

(E.D. Mich. 2010)(Rosen, J.); Montgomery v. Comm. of Soc. Sec., 2010 WL

2181431 (E.D. Mich. 2010); Miles–Richardson v. Comm'r of Soc. Sec., No.

09–11275, 2010 WL 1790976 (E.D.Mich. 2010) (Zatkoff, J.); McNaughton v.

Comm'r of Soc. Sec., No. 09–10766, 2009 WL 4646029 (E.D.Mich. 2009)

(Borman, J). 

I recognize that the Court came to a contrary conclusion in Wright v.

Comm. of Soc. Sec., 2010 WL 5420990 (E.D. Mich. 2010)(Friedman, J.). Citing

Kenney v. Heckler, 577 F.Supp. 214 (N.D. Ohio 1983), the Court in Wright held as

follows:

“[T]his Court holds that a complaint filed pursuant to 42 U.S.C. §

405(g) appealing the Secretary’s final decision denying Social

Security disability benefits, may not be dismissed for failure of the

plaintiff to prosecute when the plaintiff fails to file a summary

judgment motion as requested by the Magistrate....Stated another

way, once the plaintiff has filed a complaint stating his grounds for

appeal from the Secretary’s decision, he has done all that is required

of him by § 405(g).” Id. at *3.

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 In dicta, Wright stated, “Whether a pro se plaintiff’s failure to file a summary

judgment motion, contrary to a magistrate judge’s order, can ever constitute such delay or

misconduct [supporting dismissal under Rule 41(b)] may be debatable.” However, in

Jourdan v. Jabe, supra, 951 F.2d at 110, the Sixth Circuit appears to have resolved the

debate, at least as it applies to non-Social Security cases. Affirming the dismissal of a pro

se case for failure to prosecute, the Court stated:

“However, no persuasive reason has been posited why Jourdan should be

accorded special consideration under the circumstances of this case. His

action was not dismissed as the result of inartful pleading or any lack of

legal training, but rather because he failed to adhere to readily

comprehended court deadlines of which he was well-aware. That he

comprehended their significance is evidenced by his having sought their

extension. The district court was generous in granting extensions which

Jourdan failed to utilize.” 

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The Wright decision then went on to review the record in the merits, and

remanded the case for an award of benefits. 

The Sixth Circuit has not weighed in on whether Rule 41(b) is an

appropriate basis to dismiss a Social Security appeal brought under § 405(g), and

the divergence of views within this District (with the majority opting to dismiss

such cases for failure to prosecute) shows that reasonable jurists may differ on this

issue.2

 Under the facts of this case, however, dismissal is the preferred remedy.

The Plaintiff was ordered not only to file a summary judgment motion, but to show

cause why the case should not be dismissed, or to file a narrative statement setting

forth the reasons the ALJ got it wrong. He knew he had an obligation to file

something, because he requested an extension to do so in February of 2011. See

Jourdan v. Jabe, supra, 951 F.2d at 110. 

Moreover, the administrative record in Wright clearly showed that the

ALJ’s decision to deny benefits was not supported by substantial evidence, and the

case was remanded for an award of benefits. In fact, the Court noted that “proof of

plaintiff’s disability is strong and evidence to the contrary is non-existent.” Id. at 9.

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In contrast, a review of the record in this case shows that the ALJ’s decision is

well-supported and well-reasoned. A critical impairment upon which the Plaintiff

was originally granted benefits, and which in fact met the Listings, was his

paraplegia. After treatment and physical therapy, that impairment was resolved to

the extent that Plaintiff was “able to ambulate effectively with the intermittent use

of a cane and does not otherwise meet the requirements of any musculoskeletal

impairment.” (Tr. 17). The ALJ did find the medically determinable impairments

of “history of T12 fracture, left knee anterior cruciate ligament (ACL) injury and

bladder incontinence” (Tr. 16), but based on those impairments found that Plaintiff

had the residual functional capacity (RFC) “to perform sedentary work lifting

and/or carrying no more than 10 pounds; which is primarily seated with only

occasional time on his feet; avoiding postural activities and using a cane to

ambulate; further avoiding close proximity to unprotected heights and dangerous

machinery; and having the ability to take unscheduled restroom breaks.” (Tr. 18).

The ALJ noted that although Plaintiff testified to being able to lift 20 to 25 pounds,

he was “restricting the claimant to sedentary work, lifting no more than 10

pounds.” (Tr. 20).

In addition to the lack of clinical support for a finding of disability, the ALJ

stated as follows regarding the vagueness of Plaintiff’s claims and his lack of

credibility:

“The description of the symptoms and limitations which the claimant

has provided throughout the record has generally been inconsistent

and unpersuasive. Further, his description of symptoms has been

quite vague and general, lacking the specificity which might

otherwise make it more convincing. The claimant’s failure to seek

treatment on a regular and consistent basis calls into question the

severity of the claimant’s impairments as one would expect an

individual with allegedly disabling impairments to seek treatment

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relatively frequently.

“At the preliminary hearing in this matter the claimant testified that

he was covered by his mother’s AAA insurance after injury, for life,

but did not seek treatment as he was required to pay co-pays and

deductibles. The record of a visit in January 2007 indicates that the

visit was ‘being covered by AAA.’ The claimant’s medicare benefits

did not terminate until 2005 which would have covered treatment at

least through that time. The claimant also testified that he lacked

motivation. Additionally, he testified that he failed to follow up with

his neurologist after having disagreed with the way in which the

treating physician had characterized his condition to Agency

examiners. Clearly, the claimant’s failure to seek appropriate

treatment was not solely based upon a lack of insurance or finances.”

(Tr. 18-19) (emphasis added).

Ultimately, based on the RFC and the testimony of the Vocational Expert,

the ALJ found that “as of March 1,2004, the claimant was capable of making a

successful adjustment to work that existed in significant numbers in the national

economy,” (Tr. 22), specifically “systems monitor, lobby attendant, information

clerk or gate tender with 5,000 such jobs in existence in Southeastern Michigan.”

(Tr. 21).

Having reviewed the administrative record and the Defendant’s motion for

summary judgment, I conclude that the ALJ’s decision was supported by

substantial evidence and should not be disturbed. Thus, apart from dismissal for

failure to prosecute under Rule 41(b), summary judgment should be granted to the

Defendant on the merits.

The extraordinary length of time that has passed since Plaintiff was ordered

to file his motion for summary judgment and to respond to the show cause order is

a more than “reasonable time” within the meaning of L.R. 41.2. The Plaintiff’s

failure to respond in any manner suggests an intent to abandon this litigation.

Insofar as Plaintiff has taken no action, even after the Court sent him notice of the

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consequences of failure to comply with the show cause order, dismissal is

appropriate. Further, Fed.R.Civ.P. 41(b) states that a dismissal under that

subdivision “operates as an adjudication upon the merits.” Therefore, dismissal

should be with prejudice.

IV. CONCLUSION

I therefore recommend that the Plaintiff’s complaint be DISMISSED WITH

PREJUDICE for failure to prosecute, pursuant to Fed.R.Civ.P. 41(b). In the

alternative, I recommend that Defendant’s motion for summary judgment 

[DE #21] be GRANTED.

Any objections to this Report and Recommendation must be filed within

fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C.

§636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections

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

106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505

(6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 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.

Within fourteen (14) days of service of any objecting party’s timely filed

objections, the opposing party may file a response. The response shall be not more

than twenty (20) pages in length unless by motion and order such page limit is

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extended by the court. The response shall address specifically, and in the same

order raised, each issue contained within the objections. 

s/ R. Steven Whalen

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: February 13, 2012

CERTIFICATE OF SERVICE

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

Court's ECF System to their respective email addresses or First Class U.S. mail disclosed on the

Notice of Electronic Filing on February 13, 2012.

Benjamin Thomas, III

268 Baltimore

Detroit, MI 48202

s/Johnetta M. Curry-Williams

Case Manager

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