United States District Court, N.D. New York
MICHOL S. KIEFER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
S. KIEFER Plaintiff pro se
SECURITY ADMINISTRATION DAVID L. BROWN, ESQ. OFFICE OF
REGIONAL GENERAL COUNSEL Region II Attorneys for Defendant
DECISION AND ORDER
D'Agostino, U.S. District Judge
December 5, 2016, Plaintiff commenced this action seeking
review of the Commissioner's decision denying
Plaintiff's application for Disability Insurance Benefits
and Supplemental Security Income. See Dkt. No. 1. On
March 20, 2017, the Commissioner filed the administrative
record and the Court directed Plaintiff to file his brief by
May 4, 2017. See Dkt. No. 10. On July 18, 2017,
the Court sua sponte issued an order extending
Plaintiff's time to file his brief to August 25, 2017.
See Dkt. No. 12. In that order, Magistrate Judge
Stewart warned Plaintiff that his failure to file a brief
could result in consideration of the record with the benefit
of his arguments and could also result in the Court
dismissing this action for failure to prosecute pursuant to
Rule 41(b) of the Federal Rules of Civil Procedure. See
Id. That order was returned to the Court as
undeliverable. See Dkt. No. 13.
on September 14, 2017, the Court again extended
Plaintiff's time to file his brief to October 13, 2017
and further directed Plaintiff to update his mailing address.
See Dkt. No. 14. In that order, the Court again
warned Plaintiff that his failure to file a brief could
result in the dismissal of his action for failure to
prosecute. See Id. Again, the order was returned to
the Court as undeliverable. See Dkt. No. 15.
41(b) of the Federal Rules of Civil Procedure provides that,
[i]f 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). Dismissal of an action with prejudice
under this rule is a "harsh remedy to be utilized only
in extreme situations." LeSane v. Hall's Sec.
Analyst, Inc., 239 F.3d 206, 209 (2d Cir. 2001)
(internal quotation marks and citation omitted). This is
particularly true where a plaintiff is proceeding pro se.
See, e.g., Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.
1996) (holding that the circuit court will give due deference
to the district court's Rule 41(b) dismissal of a pro
se litigant's complaint "only when the
circumstances are sufficiently extreme").
a plaintiff's pro se status, Rule 41(b) gives
the district court explicit authority to dismiss a case where
the plaintiff fails to comply with the court's orders or
otherwise fails to prosecute the action
"diligently." Lyell Theatre Corp. v. Loews
Corp., 682 F.2d 37, 43 (2d Cir. 1982). As explained in
Lyell Theatre, this authority "is vital to the
efficient administration of judicial affairs and provides
meaningful access for other prospective litigants to
overcrowded courts." Id. at 42.
determining whether dismissal for failure to prosecute is
warranted, the district court must consider the following
factors, none of which are dispositive: (1) the duration of
the plaintiff's failures; (2) whether the plaintiff
received notice that further delays would result in
dismissal; (3) whether the defendant is likely to be
prejudiced by further delay; (4) whether an appropriate
balance has been struck between alleviating the court's
calendar congestion and protecting the litigants' due
process rights; and (5) whether lesser sanctions would be
appropriate. See United States ex rel. Drake v. Norden
Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004) (citations
present matter, the Court finds that dismissal for failure to
prosecute is warranted. Plaintiff has not communicated with
the Court since the initial filing of his complaint on
December 5, 2016. Further, because Plaintiff failed to update
his mailing address as required, the Court has had no way to
communicate with him. Although Plaintiff did not receive the
Court's two most recent warnings that his failure to file
a brief could result in dismissal, he was provided a copy of
General Order #18 that placed him on notice that such a
failure could result in dismissal. Although the third and
fourth factor only way slightly in favor of dismissal, the
Court finds that no lesser sanction would be appropriate.
Accordingly, the Court finds that the first, second and fifth
factors all weigh strongly in favor of dismissal of his
action. Courts in this Circuit have reached the same result
when faced with similar facts. See Ortega v. Apfel,
5 Fed.Appx. 96, 97 (2d Cir. 2001) (holding that the district
court did not abuse its discretion in dismissal social
security case where, beyond filing his complaint, the
plaintiff took no action to prosecute his case, failed to
respond to three district court orders, and provided no
reason for these failures, and where he received three
warnings from the district court that his failure to
prosecute his claims and to comply with the court's
orders would result in dismissal); Camacho v.
Commissioner of Soc. Sec, No. 04 Civ. 6686, 2006 WL
278399, *1 (S.D.N.Y. Feb. 1, 2006); see also Enix v.
Commissioner of Soc. Sec, 461 Fed.Appx. 861, 864 (11th
Cir. 2012) (affirming the district court's dismissal of a
Social Security appeal due to the plaintiffs failure to file
a brief challenging the ALJ's decision despite two orders
to do so); Shields v. Commissioner of Soc Sec, 474
Fed.Appx. 857, 858-59 (3rd Cir. 2012) (affirming dismissal of
Social Security appeal for failure to prosecute); Tripp
v. Commissioner of Soc Sec, 471 Fed.Appx. 631, 632 (9th
Cir. 2012) (affirming dismissal for failure to prosecute and
failure to comply with court orders); Johnson v.
Astrue, 325 Fed.Appx. 233, 233-34 (4th Cir. 2009)
(affirming dismissal of complaint pursuant to Rule 41(b) for
failure to prosecute).
on the foregoing, the Court hereby
that Plaintiffs complaint is DISMISSED for
his failure to prosecute; and the Court further
that the Clerk of the Court shall enter judgment in the
Commissioner's favor and close ...