United States District Court, D. Maine
H. RICH III UNITED STATES MAGISTRATE JUDGE.
the plaintiff, proceeding pro se, has failed to
comply with two court orders requiring her to file her
itemized statement of specific errors and fact sheet, as
mandated by Local Rule 16.3(a)(2), I recommend that the court
dismiss this action without prejudice for the plaintiff's
failure to prosecute her case.
2, 2018, the plaintiff filed her complaint in this action,
appealing from a denial of Social Security benefits.
See ECF No. 1. That same day, court staff processed
the plaintiff's ECF Registration Form for Pro Se Filers,
which provides for electronic service. Docket metadata
indicates that the plaintiff began receiving notification of
filings via her personal email address on May 3,
defendant filed her answer and the administrative record on
July 6, 2018. That same day, a Procedural Order and Amended
Procedural Order issued, which set the deadline for the
plaintiff's filing of her itemized statement of specific
errors and fact sheet as 30 days after the answer and
transcript were filed, or, as noted on the docket, August 6,
2018. Docket metadata indicates that the
plaintiff received electronic notice of the orders. The
plaintiff did not file either her itemized statement of
specific errors or the fact sheet by August 6, 2018.
August 7, 2018, I issued an Order To Show Cause, directing
that the plaintiff “show good cause in writing, no
later than August 21, 2018, 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.” ECF No. 16. Docket metadata, again, indicates
that the plaintiff received electronic notice of this order.
The plaintiff did not show good cause by August 21, 2018, 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. Dep't 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.”).
dismissal is appropriate, a separate issue remains as to
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 this court's
Amended Procedural Order of July 6, 2018, my Order To Show
Cause of August 7, 2018, and 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 prejudice.
 The Amended Procedural Order was
identical to the Procedural Order, except that it changed the
anticipated oral argument date from ...