United States District Court, W.D. Louisiana, Monroe Division
ROBERT WILLIAMS, JR.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
ROBERT G. JAMES
REPORT AND RECOMMENDATION
L. Hayes United States Magistrate Judge
January 4, 2018, the undersigned notified plaintiff pro se
Robert Williams, Jr. that the court intended to dismiss this
matter with prejudice pursuant to Rule 41(b) unless,
by January 18, 2018, he: 1) filed his appeal brief in belated
compliance with the court's Aug. 7, 2017, Scheduling
Order [doc. # 7]; or 2) otherwise petitioned the
court for an extension of time, supported by good cause.
(Jan. 4, 2018, Notice of Intent to Dismiss [doc. # 9]). To
date, plaintiff has failed to respond to the court order.
Federal Rules of Civil Procedure provide 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.” Fed.R.Civ.P. 41(b) (in pertinent
part). The Supreme Court has interpreted this rule as
authorizing the district court to dismiss an action sua
sponte, even without motion by the defendant. Link
v. Wabash R.R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386,
1388-89 (1962). “The power to invoke this sanction is
necessary in order to prevent undue delays in the disposition
of pending cases and to avoid congestion in the calendars of
the [d]istrict [c]ourts.” McCullough v.
Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988).
dismissal with prejudice is “an extreme sanction that
deprives the litigant of the opportunity to pursue his
claim.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d
1188, 1190 (5th Cir. 1992) (internal quotations
omitted). Dismissal with prejudice for failure to prosecute
or to comply with a court order is warranted only where
“a clear record of delay or contumacious conduct by the
plaintiff exists and a lesser sanction would not better serve
the interests of justice.” See Millan v. USAA
General Indem. Co., 546 F.3d 321, 325 (5th
Cir. 2008) (citations and internal quotation marks omitted).
In addition, the Fifth Circuit generally requires the
presence of at least one of three aggravating factors:
“(1) delay caused by [the] plaintiff himself and not
his attorney; (2) actual prejudice to the defendant; or (3)
delay caused by intentional conduct.” Id.
undersigned finds that the requirements for a dismissal with
prejudice are satisfied in this case. As discussed above,
plaintiff has ignored at least two court orders. Moreover,
dismissal of the case may be the least sanction where, as
here, plaintiff is not actively pursuing his cause of action.
Further, because plaintiff is proceeding in forma pauperis in
this matter, he likely does not enjoy the financial resources
to fund an alternative monetary sanction. Finally,
plaintiff's unrepentant flaunting of court
orders reflects his own contumaciouness or
“stubborn resistance to authority” which is
personally attributable to him as a pro se
foregoing reasons, IT IS RECOMMENDED that plaintiffs
complaint be DISMISSED with prejudice in accordance with the
provisions of Fed.R.Civ.P. 41(b).
the provisions of 28 U.S.C. §636(b)(1)(C) and FRCP Rule
72(b), the parties have fourteen (14) days
from service of this Report and Recommendation to file
specific, written objections with the Clerk of Court. A party
may respond to another party's objections within
fourteen (14) days after being served with a
copy thereof. A courtesy copy of any objection or response or
request for extension of time shall be furnished to the
District Judge at the time of filing. Timely objections will
be considered by the District Judge before he makes a final
PARTY'S FAILURE TO FILE WRITTEN OBJECTIONS TO THE
PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATIONS CONTAINED
IN THIS REPORT WITHIN FOURTEEN (14) DAYS FROM THE DATE OF ITS
SERVICE SHALL BAR AN AGGRIEVED PARTY, EXCEPT ON GROUNDS OF
PLAIN ERROR, FROM ATTACKING ON APPEAL THE UNOBJECTED-TO
PROPOSED FACTUAL FINDINGS AND LEGAL CONCLUSIONS ACCEPTED BY
THE DISTRICT JUDGE.
Chambers, at Monroe, Louisiana, this 5th day of
See Brown v. Oil States Skagit
Smatco, 664 F.3d 71, 78 n.2 (5th Cir. 2011) (noting that
a court may consider a plaintiff's IFP status in
determining that a monetary sanction would not be an