United States District Court, D. Maine
CYNTHIA M. TERRILL, Plaintiff
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
AMENDED RECOMMENDED DISMISSAL 
August 25, 2016, the plaintiff, proceeding pro se,
filed this appeal from a denial of Social Security benefits.
See ECF No. 1. She was granted leave to proceed
in forma pauperis, and, with the court's
assistance, effected service of her complaint on the
commissioner. See ECF Nos. 5, 9, 10, 11. On October
31, 2016, the commissioner answered the complaint and filed a
copy of the administrative record, see ECF Nos.
13-14, and the court issued a Procedural Order directing the
plaintiff, in accordance with this court's Local Rule
16.3, to file an itemized statement of specific errors and a
fact sheet within 30 days of the filing of the transcript and
answer, that is, by November 30, 2016, see ECF No.
15. The clerk's office indicated, in a private notation
on the CM/ECF docket, that it mailed a copy of the Procedural
Order to the plaintiff at the address that she had previously
provided to the court.
December 2, 2016, I issued an Order To Show Cause, noting
that the plaintiff had failed to file her itemized statement
of errors and fact sheet by November 30, 2016, as ordered.
See ECF No. 16. I directed that she show good cause
in writing, no later than December 16, 2016, why this action
should not be dismissed for failure to prosecute in light of
her failure to timely file the itemized statement of errors
and fact sheet. See id. The clerk's office
indicated, once again in a private notation on the CM/ECF
docket, that it mailed a copy of the Order To Show Cause to
plaintiff did not show good cause by December 16, 2016, why
this action should not be dismissed for failure to prosecute;
nor has she done so in the month that has since elapsed.
district court's inherent powers to sanction parties for
litigation abuses include the power to act sua
sponte to dismiss a suit for failure to
prosecute.” Diaz-Santos v. Department of Educ. of
Commonwealth of P.R., 108 Fed.Appx. 638, 640 (1st Cir.
2004). In addition, Federal Rule of Civil Procedure 41(b)
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.”
Fed.R.Civ.P. 41(b). “Although Rule 41(b) refers only to
dismissal on a motion made by a defendant, district courts
may also sua sponte dismiss a complaint under Rule
41(b) for failure to comply with a court order.”
Unitronics (1989) (R”G) Ltd. v. Gharb, 85
F.Supp.3d 118, 126 (D.D.C. 2015).
plaintiff's failure to show cause in writing why her case
should not be dismissed warrants the dismissal of her action.
See, e.g., United States v. Edmunds, Case No.
15-cv-2705 (JRT/TNL), 2016 WL 7670605, at *5 (D. Minn. Dec.
6, 2016) (rec. dec., aff'd Jan. 10, 2017)
(“[W]hile pro se litigants are accorded a certain
degree of latitude, Defendant's pro se status does not
excuse him from complying with this Court's orders as
well as the Federal Rules of Civil Procedure and the
Court's Local Rules.”).
although dismissal is appropriate, a separate issue remains
whether the dismissal should be with prejudice. Unless the
court directs otherwise, a dismissal for failure to prosecute
“operates as an adjudication on the merits.”
Fed.R.Civ.P. 41(b). As a general rule, however, dismissal of
an action with prejudice is a sanction reserved for the most
extreme misconduct. See, e.g.,
Vázquez-Rijos v. Anhang, 654 F.3d 122, 127-28
(1st Cir. 2011). For example, “[d]ismissal with
prejudice for failure to prosecute is appropriate in the face
of extremely protracted inaction (measured in years),
disobedience of court orders, ignorance of warnings,
contumacious conduct, or some other aggravating
circumstance.” Pomales v. Celulares
Telefónica, Inc., 342 F.3d 44, 48 (1st Cir. 2003)
(citations and internal quotation marks omitted).
“[W]here the case is close, courts should prefer less
severe sanctions that preserve the possibility of disposition
on the merits.” Id.
case, the plaintiff failed to comply with two consecutive
court orders, and with the court's local rules. This
failure arguably warrants dismissal with prejudice; however,
given her pro se status, and erring on the side of
caution, I recommend that the case be DISMISSED without
accordance with Federal Rule of Civil Procedure 72(a), a
party may serve and file an objection to this order within
fourteen (14) days after being served with a copy thereof.
to file a timely objection shall constitute a waiver of the
right to review by the district court and to any further
appeal of this order.
 This Recommended Dismissal is amended
to correct a typographical error, replacing the date
“October 31, 2015, ” on the fourth line of the
first page with the date ...