Newman v. Commissioner of Social Security

          ORDER OF DISMISSAL

          HON. SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE.

         On February 8, 2019, the self-represented plaintiff Cedric S. Newman, III (“plaintiff”) filed a Complaint for Review of Social Security Administration Decision. [Doc. #1]. For the reasons that follow, the Court DISMISSES, without prejudice, plaintiff's Complaint [Doc. #1] for failure to prosecute and failure to comply with the Court's orders.

         BACKGROUND

         Plaintiff filed the Complaint in this matter on February 8, 2019, using a form complaint for Review of a Social Security Administration Decision. See Doc. #1, Complaint. Simultaneously therewith, plaintiff also filed a motion seeking leave to proceed in forma pauperis [Doc. #2], which the Court granted on February 11, 2019 [Doc. #7].

         On March 21, 2019, the parties filed a Consent to Jurisdiction by a United States Magistrate Judge. [Doc. #11]. On April 9, 2019, defendant Commissioner of Social Security (“defendant”) filed the Social Security Transcripts. [Doc. #12]. On that same date, the Court entered its Supplemental Scheduling Order, requiring plaintiff to file his motion to reverse and/or remand by June 8, 2019. See Doc. #13 at 1. A copy of the Court's Supplemental Scheduling Order was sent to plaintiff by United States Mail on that same date.

         Because June 8, 2019, fell on a Saturday, plaintiff's motion to reverse and/or remand was due by Monday, June 10, 2019. Plaintiff failed to file his motion to reverse and/or remand by that date. As a result, on June 14, 2019, the Court issued an Order to Show Cause why this matter should not be dismissed for plaintiff's failure to prosecute. [Doc. #14]. The Court ordered that plaintiff file a response to the Court's Order to Show Cause on or before the close of business on June 28, 2019. See Id. A copy of the Court's Order to Show Cause was sent to plaintiff by United States Mail on June 14, 2019.

         On June 26, 2019, presumably in response to the Court's Order to Show Cause, plaintiff filed a motion seeking an additional 60 days to file his motion to reverse and/or remand and statement of material facts. See Doc. #15. On June 27, 2019, the Court granted plaintiff's motion, and afforded him an additional 30 days beyond what he had requested in his motion. See Doc. #16. The Court ordered plaintiff to file his motion on or before September 27, 2019. See Id. Because plaintiff represented that he was trying to secure counsel, see Doc. #15 at 1, the Court noted: “In the event that plaintiff is unable to secure counsel, then plaintiff will be responsible for preparing and submitting his motion to reverse and/or remand by September 27, 2019. Should plaintiff fail to file his motion to reverse and/or remand by September 27, 2019, this case may be dismissed.” Doc. #16. A copy of the Court's June 27, 2019, Order was sent to plaintiff by United States Mail on June 28, 2019.

         On July 1, 2019, plaintiff filed a motion for appointment of counsel [Doc. #17], which the Court denied on July 2, 2019, [Doc. #18]. A copy of the Court's July 2, 2019, Order was sent to plaintiff by United States Mail on that same date.

         To date, plaintiff has failed to file any motion to reverse and/or remand. Since July 1, 2019, plaintiff has not filed any documents with the Court.

         DISCUSSION

         “A district court has the inherent power to dismiss a case ... for lack of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. The Supreme Court explained that such authority is governed by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Reynel v. Barnhart, No. 01CV6482(RLE), 2002 WL 2022429, at *1 (S.D.N.Y. Sept. 3, 2002) (citation and quotation marks omitted). “Although not explicitly authorized by Rule 41(b), a court may dismiss a complaint for failure to prosecute sua sponte.” Zappin v. Doyle, 756 Fed.Appx. 110, 111-12 (2d Cir. 2019).

         “Rule 41(b) recognizes the district courts' power to dismiss a complaint for failure of the plaintiff to comply with a court order, treating noncompliance as a failure to prosecute. Courts have repeatedly found that dismissal of an action is warranted when a litigant, whether represented or instead proceeding pro se, fails to comply with legitimate court directives.” Bonnette v. Comm'r of Soc. Sec., No. 16CV6398(ENV), 2018 WL 6173434, at *2 (E.D.N.Y. Nov. 26, 2018). When considering whether to dismiss an action for failure to prosecute, courts generally consider the following five factors:

“(1) the duration of the plaintiff's failure to comply with the court order, (2) whether plaintiff was on notice that failure to comply would result in dismissal, (3) whether the defendants are likely to be prejudiced by further delay in the proceedings, (4) a balancing of the court's interest in managing its docket with the plaintiff's interest in receiving a fair chance to be heard, and (5) whether the judge has adequately considered a sanction less drastic than dismissal.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir. 1996). No. single factor is generally dispositive. Nita v. Connecticut Dep't of Envtl. Prot., 16 F.3d 482, 485 (2d Cir. 1994).

Baptiste v. Sommers, 768 F.3d 212, 216 (2d Cir. 2014); accord Rozell v. Berryhill, No. 18CV969(AJN)(JLC), 2019 WL 1320514, at *1-2 ...