Richardson v. Social Security Administration Commissioner

2010 | Cited 0 times | D. Maine | October 21, 2010

ORDER REJECTING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

On May 13, 2010, Cynthia A. Richardson filed a complaint in this Court against Michael Astrue, Commissioner of Social Security. Compl. (Docket # 1). On May 13, 2010, the Court issued a Summons as to the Social Security Commissioner. Summons (Docket # 3). On May 14, 2010, Ms. Richardson moved for leave to file in forma pauperis. App. to Proceed in District Court Without Prepaying Fees or Costs (Docket # 4). On May 14, 2010, the Court granted her motion. Order Granting Mot. for Leave to Proceed in forma pauperis (Docket # 7).

The case then went fallow. On September 17, 2010 the Court reissued a Summons for the Social Security Commissioner and issued a Summons for the Attorney General of the United States. Summons (Docket # 8). After more than a month of silence, the Magistrate Judge issued a Recommended Decision on October 19, 2010 in which she recommended that the complaint be dismissed. Recommended Dec. (Docket # 9). The Magistrate Judge explained that as no return of service had been filed and four months had lapsed, under Rule 4(m) of the Federal Rules of Civil Procedure, the court must either dismiss the action without prejudice or order that service be made within a specified time. Id. at 1. The Magistrate Judge even set forth an example of an affidavit for use by counsel "to alert the court regarding the expected response deadline." Id. at 1-2. In the absence of any response from counsel, the Magistrate Judge recommended that the complaint be dismissed without prejudice. Id.

The Magistrate Judge's Recommended Decision jolted counsel into action. The next day, October 20, 2010, he filed an affidavit in the form the Magistrate Judge recommended, confirming that on September 22, 2010, he had received a return of service from the United States Attorney for the District of Maine, but that he had not as yet received a return of service from the United States Attorney General. Reply Mem. and Ob. to Recommended Dec. (Docket # 10).

From the Court's perspective, the Magistrate Judge's Recommended Decision has achieved its intended effect. Counsel is now attempting to comply with Rule 4(m) and obtain timely service of process on the Government. Having started the appeals process in this Court, it achieves little to require Ms. Richardson to start all over again. However, given the history, the Court is unwilling to give counsel a free hand. Ms. Richardson's counsel shall file a letter with the Magistrate Judge no later than thirty (30) days from today, updating the Judge about the status of service of process.

By rejecting the Recommended Decision, the Court has not concluded that the Magistrate Judge erred. Rather, her Order successfully prodded counsel to action and achieved its purpose. Having gotten his attention, the Court assumes counsel will remain focused on the task at hand.

The Court ORDERS that the Recommended Decision of the Magistrate Judge (Docket # 9) is hereby REJECTED and that counsel for the Plaintiff file with the Magistrate Judge no later than thirty (30) days from today a status report regarding his efforts to complete service of process.

SO ORDERED.

Dated this 21st day of October, 2010

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