United States District Court, D. Maine
H. Rich III, United States Magistrate Judge
August 29, 2016, the plaintiff, then represented by attorney
Francis M. Jackson, filed this appeal from a denial of Social
Security benefits. See ECF No. 1. On November 14,
2016, after the plaintiff was granted leave to proceed in
forma pauperis and effected service of her complaint on
the commissioner, the court granted Attorney Jackson's
motion to withdraw as her attorney, and she has since
proceeded pro se. See ECF Nos. 5-6, 9-12.
On December 13, 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 January 12, 2017,
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.
January 31, 2017, I issued an Order To Show Cause, noting
that the plaintiff had failed to file her itemized statement
of errors and fact sheet by January 12, 2017, as ordered, or
by January 20, 2017, in accordance with a deadline extension
the court granted sua sponte. See ECF No.
16. I directed that she show good cause in writing, no later
than February 14, 2017, 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 the plaintiff.
plaintiff did not show good cause by February 14, 2017, why
this action should not be dismissed for failure to prosecute;
nor has she done so since that deadline 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
 Nancy A. Berryhill, who is now the
Acting Commissioner of Social Security, is substituted for
former Acting Commissioner Carolyn W. Colvin as the defendant
in this suit pursuant to ...