United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
L. TINSLEY UNITED STATES MAGISTRATE JUDGE.
standing order dated March 31, 2014, the District Judge
referred and assigned the civil actions and matters regarding
Plaintiff's complaint to the undersigned (ECF No. 6).
This is an action seeking review of the final decision of the
Commissioner of Social Security denying the Plaintiff's
application for benefits under the Social Security Act, 42
U.S.C. §§ 401-433, 1381-1383f.
March 11, 2014, Plaintiff filed her Complaint in this matter
and an Application to Proceed Without Prepayment of Fees and
Costs. (ECF Nos. 1 and 2). By Order and Notice entered April
1, 2014, the undersigned granted Plaintiff's Application
to Proceed Without Prepayment of Fees and Costs and directed
Plaintiff to serve the Summons and Complaint pursuant to Rule
4 of the Federal Rules of Civil Procedure (ECF No. 7). The
electronic summons was issued on April 1, 2014 (ECF No. 8).
21, 2016, the undersigned entered a Notice of Failure to Make
Service Within 120 Days to Plaintiff, which advised her that
this civil action would be dismissed within ten days of the
filing of the notice unless she could demonstrate good cause
to the Court why service was not made within the 120 period
of time. (ECF No. 9). On July 21, 2016, a certified copy of
the Notice was transmitted via United States postal service.
Neither Plaintiff nor her counsel responded to the Notice.
to Rule 41(b) of the Federal Rules of Civil
Procedure and Rule 41.1 of the Local Rules of Civil
Procedure for the Southern District of West Virginia,
District Courts possess the inherent power to sua
sponte dismiss an action for a pro se
plaintiff's failure to prosecute. See Link
v. Wabash Railroad Co., 370 U.S. 626, 629, 82 S.Ct.
1386, 1388, 8 L.Ed.2d 734 (1962). Rule 41.1 of the Local
Dismissal of Actions. When it appears in any
pending civil action that the principal issues have been
adjudicated or have become moot, or that the parties have
shown no interest in further prosecution, the judicial
officer may give notice to all counsel and unrepresented
parties that the action will be dismissed 30 days after the
date of the notice unless good cause for its retention on the
docket is shown. In the absence of good cause shown within
that period of time, the judicial officer may dismiss the
action. The clerk shall transmit a copy of any order of
dismissal to all counsel and unrepresented parties. This rule
does not modify or affect provisions for dismissal of actions
under FR Civ P 41 or any other authority.
the propriety of a dismissal Adepends on the particular
circumstances of the case, @ in determining whether to
dismiss a case involuntarily for want of prosecution, the
District Court should consider the following four factors:
(i) the degree of personal responsibility of the plaintiff;
(ii) the amount of prejudice caused the defendant,
(iii) the existence of a history of deliberately proceeding
in a dilatory fashion, and
(iv) the existence of a sanction less drastic than dismissal.
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).
In consideration of the first three factors, the Court finds
that the delays in this case are attributable solely to the
Plaintiff as the Defendant has not been required to make an
appearance in this action. Therefore, Plaintiff is the sole
cause of the delays in this action. Plaintiff was directed,
pursuant to Rule 4 of the Federal Rules of Civil Procedure,
to serve a copy of the Summons and Complaint on the
Defendant. (ECF No. 7). Thus, Plaintiff has neither
effectuated service within the 120 day period pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure, nor
demonstrated good cause for his failure to do so, and
dismissal is proper for this reason. With respect to the
second and third factors, although the record is void of
further evidence indicating that Plaintiff has a history of
Adeliberately proceeding in a dilatory fashion, @ the Court
does not find that the named Defendant will be prejudiced by
dismissal of Plaintiff's Complaint.
consideration of the fourth factor, the Court acknowledges
that a dismissal under either Rule 41(b) or Local Rule 41.1
is a severe sanction against Plaintiff that should not be
invoked lightly. The particular circumstances of this case
however, do not warrant a lesser sanction. An assessment of
fines, costs, or damages against Plaintiff would be futile in
view of his inability to pay the filing fee. Moreover,
explicit warnings of dismissal would be ineffective in view
of the undersigned's Orders advising Plaintiff that her
failure to show good cause for failure to make service would
result in a dismissal of this matter without prejudice. (ECF