UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) KIMBERLY A. OLIPHANT, ) ) Plaintiff, ) ) v. ) Civil Action No. 22-cv-00339-RMM ) MARTIN O’MALLEY, ) Commissioner of Social Security, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiff Kimberly A. Oliphant filed the Complaint in this action on January 31, 2022.
See Compl., ECF No. 1. Defendant Commissioner of the Social Security Administration filed an
Answer on April 28, 2022. See Answer, ECF No. 8. District Judge Colleen Kollar-Kotelly
thereafter referred the case to Magistrate Judge Robin M. Meriweather for all purposes, including
trial on May 16, 2022. See Referral Order, ECF No. 12; Referral Entry, May 16, 2022. The
undersigned adopted the parties’ Proposed Briefing Schedule on May 25, 2022. See Min. Order,
May 25, 2022. The Commissioner thereafter reported to the undersigned that Ms. Oliphant’s
counsel, Mr. Peter Tyler Enslein, passed away on or around July 8, 2022; the Court entered an
Order holding the briefing schedule in abeyance due to the recent passing of Ms. Oliphant’s
counsel. See Min. Order, July 11, 2022. On August 9, 2022, the Commissioner subsequently
reported that attempts to reach Ms. Oliphant for the limited purpose of ascertaining whether Ms.
Oliphant had retained new counsel had been unsuccessful. See Status Report, ECF No. 14. The
1 Court requested that the Commissioner file another status report by October 10, 2022 so she
could attempt to reach Ms. Oliphant again. See Min. Order, August 10, 2022. On October 7,
2022, the Commissioner again reported that attempts to reach Ms. Oliphant via phone, email, and
mail had been unsuccessful. See Status Report, ECF No. 15.
On February 17, 2023, the Court ordered Ms. Oliphant to explain on or before March 6,
2023, whether she intended to pursue the claims in this case and whether she intended to proceed
pro se or to retain new counsel. See Order, ECF No. 18. On February 21, 2023, the Clerk’s
Office mailed a copy of this order to Ms. Oliphant at her last known address. See Docket Entry,
Feb. 21, 2023. Ms. Oliphant failed to respond to that Order. On May 3, 2023, the Court ordered
Ms. Oliphant to show cause on or before May 18, 2023, why this case should not be dismissed
for failure to prosecute and warned Ms. Oliphant that failure to respond could result in dismissal.
See Order, ECF No. 19. On May 3, 2023, the Clerk’s Office mailed a copy of this order to Ms.
Oliphant. See Docket Entry, May 3, 2023. As of the date of this Memorandum Opinion and
Order, July 19, 2024, Ms. Oliphant has not responded to the Order or attempted to communicate
with the Court in any way.
II. LEGAL STANDARD
A Court may dismiss a case if the plaintiff “fails to prosecute” the case. Fed. R. Civ. P.
41(b); Local Civ. R. 83.23. The authority to dismiss for failure to prosecute is “necessarily
vested in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962). A dismissal for
failure to prosecute is appropriate “if, in view of the entire procedural history of the case, the
litigant has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor
Co., 761 F.2d 713, 714 (D.C. Cir. 1985) (citations omitted). Courts typically consider the nature
2 and severity of the plaintiff’s conduct, prejudice to the defendant, and whether less dire
alternatives to dismissal are available. See id. Dismissal shall be made without prejudice unless
the court determines that prejudice to the defendant requires otherwise. See Local Civ. R. 83.23.
Courts have dismissed actions by pro se litigants for the “repeated failure to respond to
the Court’s orders or in any way move forward on [a] case.” Holston v. Vance-Cooks, No. 12-cv-
1536, 2013 WL 5912475, at *1 (D.D.C. Nov. 5, 2013). “Courts allow leeway to parties
proceeding pro se to ensure access to the judicial system even for those persons who lack an
understanding of the procedural and substantive requirements of litigation.” Garlington v. D.C.
Water & Sewer Auth., 62 F. Supp. 3d 23, 24 (D.D.C. 2014) (citing Moore v. Agency for Int’l Dev.,
994 F.2d 874, 876 (D.C. Cir. 1993)). In light of the leniency typically afforded to pro se parties,
before dismissing a case, the court may consider that pro se parties do not have the same
“acquaintance with the rules of the judicial process and the consequences risked by their
infringement” as attorneys. Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 168 (D.C. Cir.
1990). However, this leniency does “not constitute a license for a plaintiff filing pro se to ignore
the Federal Rules of Civil Procedure,” a court’s local rules, or a court’s orders. Moore v.
Robbins, 24 F. Supp. 3d 88, 97 (D.D.C. 2014) (internal quotation marks omitted); Muhammad v.
United States, 16-cv-1079, 2019 WL 652400, at *3 (D.D.C. Feb. 15, 2019).
Dismissal for failure to prosecute is a “harsh sanction,” however, and the court must
demonstrate why such sanction “was necessary under the circumstances of the case.” Peterson v.
Archstone Cmtys. LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (quoting English-Speaking Union v.
Johnson, 353 F.3d 1013, 1016 (D.C. Cir. 2004)). Indeed, dismissal should only be considered
“after less dire alternatives have been tried without success.” Peterson, 637 F.3d at 418–19
(quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 187 (D.C. Cir. 1985)).
3 A “lengthy period of inactivity” may provide sufficient grounds for dismissal, particularly
in the presence of other aggravating factors, such as a lack of excuse or failure to obey court
orders. Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988). “Prejudice to defendants
resulting from unreasonable delay may be presumed.” Lyell Theatre Corp. v. Loews Corp., 682
F.2d 37, 43 (2d Cir. 1982) (citing Citizens Utils. Co. v. Am. Tel. & Tel. Co., 595 F.2d 1171 (9th
Cir. 1979)). “[T]here is no hard and fast requirement that the party aggrieved by such
unreasonable delay always presents specific evidence of the exact nature of the prejudice.” Shea
v. Donohoe Const. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986).
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
) KIMBERLY A. OLIPHANT, ) ) Plaintiff, ) ) v. ) Civil Action No. 22-cv-00339-RMM ) MARTIN O’MALLEY, ) Commissioner of Social Security, ) ) Defendant. ) )
MEMORANDUM OPINION AND ORDER
I. BACKGROUND
Plaintiff Kimberly A. Oliphant filed the Complaint in this action on January 31, 2022.
See Compl., ECF No. 1. Defendant Commissioner of the Social Security Administration filed an
Answer on April 28, 2022. See Answer, ECF No. 8. District Judge Colleen Kollar-Kotelly
thereafter referred the case to Magistrate Judge Robin M. Meriweather for all purposes, including
trial on May 16, 2022. See Referral Order, ECF No. 12; Referral Entry, May 16, 2022. The
undersigned adopted the parties’ Proposed Briefing Schedule on May 25, 2022. See Min. Order,
May 25, 2022. The Commissioner thereafter reported to the undersigned that Ms. Oliphant’s
counsel, Mr. Peter Tyler Enslein, passed away on or around July 8, 2022; the Court entered an
Order holding the briefing schedule in abeyance due to the recent passing of Ms. Oliphant’s
counsel. See Min. Order, July 11, 2022. On August 9, 2022, the Commissioner subsequently
reported that attempts to reach Ms. Oliphant for the limited purpose of ascertaining whether Ms.
Oliphant had retained new counsel had been unsuccessful. See Status Report, ECF No. 14. The
1 Court requested that the Commissioner file another status report by October 10, 2022 so she
could attempt to reach Ms. Oliphant again. See Min. Order, August 10, 2022. On October 7,
2022, the Commissioner again reported that attempts to reach Ms. Oliphant via phone, email, and
mail had been unsuccessful. See Status Report, ECF No. 15.
On February 17, 2023, the Court ordered Ms. Oliphant to explain on or before March 6,
2023, whether she intended to pursue the claims in this case and whether she intended to proceed
pro se or to retain new counsel. See Order, ECF No. 18. On February 21, 2023, the Clerk’s
Office mailed a copy of this order to Ms. Oliphant at her last known address. See Docket Entry,
Feb. 21, 2023. Ms. Oliphant failed to respond to that Order. On May 3, 2023, the Court ordered
Ms. Oliphant to show cause on or before May 18, 2023, why this case should not be dismissed
for failure to prosecute and warned Ms. Oliphant that failure to respond could result in dismissal.
See Order, ECF No. 19. On May 3, 2023, the Clerk’s Office mailed a copy of this order to Ms.
Oliphant. See Docket Entry, May 3, 2023. As of the date of this Memorandum Opinion and
Order, July 19, 2024, Ms. Oliphant has not responded to the Order or attempted to communicate
with the Court in any way.
II. LEGAL STANDARD
A Court may dismiss a case if the plaintiff “fails to prosecute” the case. Fed. R. Civ. P.
41(b); Local Civ. R. 83.23. The authority to dismiss for failure to prosecute is “necessarily
vested in courts to manage their own affairs so as to achieve the orderly and expeditious
disposition of cases.” Link v. Wabash R.R. Co., 370 U.S. 626, 630–31 (1962). A dismissal for
failure to prosecute is appropriate “if, in view of the entire procedural history of the case, the
litigant has not manifested reasonable diligence in pursuing the cause.” Bomate v. Ford Motor
Co., 761 F.2d 713, 714 (D.C. Cir. 1985) (citations omitted). Courts typically consider the nature
2 and severity of the plaintiff’s conduct, prejudice to the defendant, and whether less dire
alternatives to dismissal are available. See id. Dismissal shall be made without prejudice unless
the court determines that prejudice to the defendant requires otherwise. See Local Civ. R. 83.23.
Courts have dismissed actions by pro se litigants for the “repeated failure to respond to
the Court’s orders or in any way move forward on [a] case.” Holston v. Vance-Cooks, No. 12-cv-
1536, 2013 WL 5912475, at *1 (D.D.C. Nov. 5, 2013). “Courts allow leeway to parties
proceeding pro se to ensure access to the judicial system even for those persons who lack an
understanding of the procedural and substantive requirements of litigation.” Garlington v. D.C.
Water & Sewer Auth., 62 F. Supp. 3d 23, 24 (D.D.C. 2014) (citing Moore v. Agency for Int’l Dev.,
994 F.2d 874, 876 (D.C. Cir. 1993)). In light of the leniency typically afforded to pro se parties,
before dismissing a case, the court may consider that pro se parties do not have the same
“acquaintance with the rules of the judicial process and the consequences risked by their
infringement” as attorneys. Bristol Petroleum Corp. v. Harris, 901 F.2d 165, 168 (D.C. Cir.
1990). However, this leniency does “not constitute a license for a plaintiff filing pro se to ignore
the Federal Rules of Civil Procedure,” a court’s local rules, or a court’s orders. Moore v.
Robbins, 24 F. Supp. 3d 88, 97 (D.D.C. 2014) (internal quotation marks omitted); Muhammad v.
United States, 16-cv-1079, 2019 WL 652400, at *3 (D.D.C. Feb. 15, 2019).
Dismissal for failure to prosecute is a “harsh sanction,” however, and the court must
demonstrate why such sanction “was necessary under the circumstances of the case.” Peterson v.
Archstone Cmtys. LLC, 637 F.3d 416, 418 (D.C. Cir. 2011) (quoting English-Speaking Union v.
Johnson, 353 F.3d 1013, 1016 (D.C. Cir. 2004)). Indeed, dismissal should only be considered
“after less dire alternatives have been tried without success.” Peterson, 637 F.3d at 418–19
(quoting Trakas v. Quality Brands, Inc., 759 F.2d 185, 187 (D.C. Cir. 1985)).
3 A “lengthy period of inactivity” may provide sufficient grounds for dismissal, particularly
in the presence of other aggravating factors, such as a lack of excuse or failure to obey court
orders. Smith-Bey v. Cripe, 852 F.2d 592, 594 (D.C. Cir. 1988). “Prejudice to defendants
resulting from unreasonable delay may be presumed.” Lyell Theatre Corp. v. Loews Corp., 682
F.2d 37, 43 (2d Cir. 1982) (citing Citizens Utils. Co. v. Am. Tel. & Tel. Co., 595 F.2d 1171 (9th
Cir. 1979)). “[T]here is no hard and fast requirement that the party aggrieved by such
unreasonable delay always presents specific evidence of the exact nature of the prejudice.” Shea
v. Donohoe Const. Co., 795 F.2d 1071, 1075 (D.C. Cir. 1986).
III. ANALYSIS
Dismissal is warranted here. Ms. Oliphant has “not manifested reasonable diligence in
pursuing [her] cause.” Bomate, 761 F.2d at 714. Ms. Oliphant’s failure to respond to any of the
Court’s requests or file anything further in over a year has resulted in a “lengthy period of
inactivity.” Smith-Bey, 852 F.2d at 594.
Dismissal is further warranted because the Court has repeatedly attempted to use “less
dire alternatives.” Peterson, 637 F.3d at 418. Ms. Oliphant has failed to comply with two Court
Orders, one of which directed her to explain whether she intends to prosecute the case and
whether she intends to obtain new counsel or proceed pro se, the other of which directed her to
show cause why the case should not be dismissed; both orders warned Ms. Oliphant that failure
to respond could result in dismissal. See Order, ECF No. 18; Order, ECF No. 19. The Court has
taken these measures to ensure that Ms. Oliphant, who now appears to be proceeding pro se, has
had ample opportunity to prosecute her case before resorting to dismissal. See Allen v. United
States, 277 F.R.D. 221, 224 (D.D.C. 2011) (dismissing pro se plaintiff’s case for failure to
prosecute after providing warnings and additional time to file). Yet Ms. Oliphant has not had any
4 contact with the Court or shown any interest in pursuing this case since filing her Complaint.
Dismissal without prejudice is therefore both justified under the circumstances and necessary for
the efficient operation of the district courts. See, e.g., McCaskill v. Kijakazi, No. 22-CV-1494-
TJK-ZMF, 2023 WL 2914174 (D.D.C. Jan. 31, 2023) (dismissing case without prejudice where
plaintiff failed to respond to court orders following his attorney’s death); Link, 370 U.S. at 633–
35 (finding no abuse of discretion for court’s dismissal for failure to prosecute after plaintiff’s
counsel, “in the context of other evidence of delay,” failed to appear at pretrial conference).
Accordingly, it is hereby
ORDERED that this case be DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure
to prosecute the case.
This is a final, appealable order. The Clerk of Court is directed to close the case.
SO ORDERED.
Dated: July 19, 2024 ___________________________________ ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE