Nowicki v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JOSEPH N.,
Plaintiff,
- v - 	6:24-CV-920
(DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
APPEARANCES: 	OF COUNSEL:
JOSEPH N.
Plaintiff Pro Se
Rome, New York 13440
SOCIAL SECURITY ADMINISTRATION 	VERNON NORWOOD, ESQ.
OFFICE OF GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this action challenging a determination by the Commissioner
of Social Security that he was not disabled. Dkt. No. 1. Though originally represented
by counsel, Plaintiff’s counsel requested leave to withdraw due to health issues. 	Dkt.
Nos. 17 & 21. 	Plaintiff’s counsel advised the Court that he had reached an agreement
with another attorney to take over representation of Plaintiff, but that Plaintiff had not
responded to counsel about this option. 	Dkt. No. 21. 	This Court held a hearing on the
motion to withdraw, at which Plaintiff was present, and counsel again noted that an
attorney was willing to substitute as counsel. Text Minute Entry for April 23, 2025. The
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request to withdraw was granted and the matter stayed so that Plaintiff could consult about
retaining counsel. Dkt. No. 22. No counsel appeared on behalf of Plaintiff. Plaintiff was
then directed to file a brief addressing the merits of his claims by September 11, 2025.
Dkt. No. 23. 	When Plaintiff did not comply, the Court then sua sponte extended that
deadline to October 24, 2025. Dkt. No. 25. Plaintiff to date has not filed a merits brief.
Defendant has now moved to dismiss based on Plaintiff’s failure to prosecute this
matter. Dkt. No. 27. The Court provided Plaintiff notice that a response to the Motion
was due February 2, 2026. 	Dkt. No. 28. 	That notice has now been returned as
undeliverable. 	Dkt. No. 31. 	When Plaintiff did not timely respond to the Motion, the
Court sua sponte extended Plaintiff’s deadline to respond to February 27, 2026. Dkt. No
30. That Order was also returned undeliverable. Dkt. No. 32. No response has yet been
received from Plaintiff.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court may, in
its discretion, dismiss an action based upon the failure of a plaintiff to prosecute an action,
or to comply with the procedural rules or orders of the court. F ED . R. CIV . P. 41(b); see
Link v. Wabash R.R. Co., 370 U.S. 626 (1962). This power to dismiss may be exercised
when necessary to achieve orderly and expeditious disposition of cases. See Freeman v.
Lundrigan, 1996 WL 481534, at *1 (N.D.N.Y. Aug. 22, 1996). The correctness of a
dismissal pursuant to Rule 41(b) is determined in light of five factors: (1) whether
plaintiff’s failure to prosecute or to comply with the court’s orders or procedural rules
caused a delay of significant duration; (2) whether plaintiff was on notice that failure to
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prosecute or to comply would result in dismissal; (3) whether the defendant is likely to
be prejudiced by further delay; (4) a balancing of the court’s interest in managing its
docket with the plaintiff’s interest in receiving a fair chance to be heard; and (5) whether
the judge has adequately considered a sanction less drastic than dismissal. 	Lewis v.
Rawson, 564 F.3d 569, 576 (2d Cir. 2009); Lucas v. Miles, 84 F.3d 532, 534-35 (2d Cir.
1996). In making use of this test, “[n]o one factor is dispositive, and ultimately we must
review the dismissal in light of the record as a whole.” 	United States ex rel. Drake v.
Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir. 2004). Consideration of these factors leads
the Court to conclude that dismissal is warranted here.
First, Plaintiff’s non-compliance with Court deadlines has significantly slowed the
progress of this matter. Plaintiff has been afforded multiple opportunities to address the
merits of his claim or to explain why his case should not be dismissed. 	He has taken
advantage of none of those opportunities. As a result, the Commissioner and the Court
are unaware of the specific factual or legal arguments on which Plaintiff seeks to overturn
the Commissioner’s decision. This Court has also been unable to move this case forward.
Plaintiff was put on notice from the outset of this matter that the failure to file a
brief could result in dismissal. General Order 18 was provided to Plaintiff and provides:
“In the event a plaintiff fails to submit a brief, the defendant may file a motion to dismiss
for failure to prosecute, pursuant to Federal Rule of Civil Procedure 41(b), and the action
may be dismissed with prejudice on the basis of the plaintiff’s failure to file a brief.” Dkt.
No. 5 at p. 8. 	Plaintiff was also specifically put on notice that his failure to respond to
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this Motion could result in dismissal. 	After Plaintiff did not timely respond, this Court
sua sponte extended his time to do so, but warned:
Plaintiff is advised that Defendant’s Motion seeks dismissal of his
Complaint. If the Motion to Dismiss is granted, the Complaint will be
dismissed. Plaintiff’s failure to respond to the Motion and justify his
failure to prosecute this matter may be viewed as an additional basis
on which to grant the Motion.
Dkt. No. 30 at p. 1 (emphasis in original).
The third factor also favors dismissal. 	This action has been pending since July
2024. 	The delay of a year and half, when Defendant has complied with all Court
deadlines, is presumed to be prejudicial. Thomas P. R. v. Comm’r of Soc. Sec., 2022 WL
293323, at *3 (N.D.N.Y. Feb. 1, 2022); Saundvallee B. v. Berryhill, 2019 WL 2210595,
at *2 (N.D.N.Y. May 22, 2019). 	Plaintiff has been afforded multiple opportunities to
demonstrate his willingness to proceed with this matter and have it heard on the merits
but has not done so. 	Documents served by the Court upon Plaintiff at his last known
address have now been returned, Dkt. Nos. 31 & 32, which means the Court is now
presented with the additional complication of having no way of contacting Plaintiff to
address how to further move this case on the Court’s docket. Finally, this Court has also
considered alternative, less drastic sanctions but does not believe any are viable here.
Plaintiff was given multiple extensions of time to submit a merits brief but declined to do
so. 	Proceeding to address this claim on the merits would be impractical since Plaintiff
“has provided no guidance – in the Complaint or elsewhere – as to the grounds on which
he appeals.” 	Saundvallee B. v. Berryhill, 2019 WL 2210595, at *2 (citing cases). And
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without a proper address on file, the ability of the Court to engage Plaintiff were an
alternative available is now in question.
For the reasons stated herein, it is hereby
ORDERED, that Defendant’s Motion to Dismiss (Dkt. No. 27) be GRANTED;
and it is
ORDERED, that the Clerk of the Court serve a copy of this Memorandum-
Decision and Order upon the parties to this action. The Clerk shall serve this Order upon
Plaintiff at his last known address.
IT IS SO ORDERED.
Dated: March 5, 2026
Albany, New York
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