Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
NICHOLAS LARON BEAVER, )
)
Plaintiff, )
) CIVIL ACTION
v. )
) No. 25-3087-JWL
)
FRANK BISIGNANO, )
Commissioner of Social Security, )
)
Defendant. )
______________________________________)
MEMORANDUM AND ORDER
Plaintiff, a prisoner, filed this action pro se1 on May 6, 2025, as a civil rights
action pursuant to 42 U.S.C. § 1983. (Doc. 1). Thereafter the court determined this
case was really a Social Security Action Under 42 U.S.C. § 405(g) on October 22, 2025
(Doc. 7) and the case became stayed pursuant to District of Kansas Standing Order 25-05
because of the lapse of appropriations which began October 1, 2025. After the lapse in
appropriations ended, the court issued a Scheduling Order to reestablish deadlines for
prosecution of the case. (Doc. 8).
1 Because he appears pro se, the court construes Plaintiff’s pleadings and briefs liberally.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Travis v. Park City Mun. Corp., 565 F.3d
1252, 1254 (10th Cir. 2009). But, the court will not assume the role of advocate for him.
Garrett v. Selby Conner Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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The Commissioner responded to Plaintiff’s Complaint on February 6, 2026, with a
Motion to Dismiss or for Summary Judgment. (Doc. 11). That same day, the
Commissioner sent Plaintiff a Notice to Pro Se Litigants Who Oppose a Motion for
Summary Judgment. (Doc. 12). On February 9, 2026, the court entered an Order that
Plaintiff’s response to Defendant’s motion was due February 27, 2026. (Doc. 13).
When Plaintiff failed to file a timely response to the Commissioner’s motion, the
court issued an Order to Show Cause “no later than April 6, 2026 why the
Commissioner’s motion to dismiss or for summary judgment should not be granted as
unopposed; and why he has not notified the court of his change of address in accordance
with District of Kansas Rule 5.1(b)(3). (Doc. 14, p.3). The court also ordered the
Clerk of Court to resend Documents 11-13 to Plaintiff’s apparent new address and
ordered Plaintiff to file a separate response to the Commissioner’s motion if he desired to
oppose it. Id. It is now more than three weeks after that deadline and Plaintiff has not
notified the court of a correct address, has not responded to the court’s orders or to the
Commissioner’s motion, and has filed nothing with the court.
The court has determined to dismiss this case pursuant to Fed. R. Civ. P. 41b for
Plaintiff’s failure to prosecute or to obey the court’s orders.
“A district court undoubtedly has discretion to sanction a party for failing to
prosecute or defend a case, or for failing to comply with local or federal procedural
rules.” Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Because dismissal is a
severe sanction, it should be imposed only if a “lesser sanction would not serve the ends
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of justice.” Id. (quotation omitted). In evaluating whether dismissal is an appropriate
sanction, the district court should consider the following factors: (1) The degree of
actual prejudice to the opposing party, (2) the degree of interference with the judicial
process, (3) the litigant’s culpability, (4) whether the court warned the party in advance
that dismissal of the action would be a likely sanction for noncompliance, and
(5) whether a lesser sanction would be effective. Gripe v. City of Enid, 312 F.3d 1184,
1188 (10th Cir. 2002) (citing the factors set forth in Ehrenhaus v. Reynolds, 965 F.2d 916
(10th Cir. 1992)). AIt is within a court’s discretion to dismiss a case with prejudice if,
after considering all the relevant factors, it concludes that dismissal alone would satisfy
the interests of justice.@ Ehrenhaus, 965 F.2d at 916.
Turning to the first factor, the Commissioner has suffered some prejudice by
Plaintiff=s failure to actively prosecute this case. The Commissioner has invested time
and effort into researching and preparing a response in this case. Moreover, the
Commissioner was required to utilize resources to monitor and review each of the court’s
orders and determine whether any action on his part was necessary or appropriate in the
circumstances.
The second factor also somewhat supports dismissal of this action. The manner
in which Plaintiff has prosecuted this case (or, perhaps more accurately, not prosecuted
this case) has risen to the level of interfering with the judicial process. The court has
invested time and effort into shepherding this case through the briefing process without
success. Plaintiff has not responded to anything in this case since June 9, 2025.
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Moreover, he has been moved from the Douglas County Jail and placed by the Kansas
Department of Corrections in the Lansing Correctional Facility as best the court has been
able to discern, yet he has still not responded to any of the court’s efforts.
This leads to consideration of the third factor which focuses on the plaintiff’s
culpability. The third factor most heavily weighs in favor of dismissal. As is more
fully laid out above, Plaintiff has failed to prepare and file a response to the
Commissioner’s Motion or to any of the court’s Orders.
The fourth factor is also satisfied. The court’s “Order to Show Cause”
specifically warned Plaintiff that his failure to respond could result in dismissal of his
case. (Doc. 14).
Finally, the court considers the efficacy of lesser sanctions. Here, the court has
granted Plaintiff leniency in light of his status as a pro se litigant. Moreover, the court
has been unable to identify any appropriate lesser sanction in a Social Security case in
general and this case in particular which would secure prosecution of the case. After
carefully reviewing the record before the court and the history of this case, the court
concludes that no remedy short of dismissal would be effective.
After consideration of the five Ehrenhaus factors in light of the circumstances of
this case, the court concludes that the factors weigh in favor of dismissal of this action.
Defendants have suffered prejudice by virtue of having devoted resources to preparing
and filing a response in this case and monitoring the orders entered by the court in its
attempts to secure prosecution of the case. Meanwhile, this case is interfering with the
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judicial process because it continues to linger on the court’s docket without any
meaningful progress toward resolution. Plaintiff’s culpability for this predicament is
high, as he is aware of his obligation to prepare a response brief. And the court
forewarned Plaintiff that his failure to respond could result in dismissal and yet he still
has not done so. At this point in time, the court believes that dismissal is the only
remedy that would be effective.
IT IS THEREFORE ORDERED that this case is dismissed in accordance with
Rule 41(b) of the Federal Rules of Civil Procedure for Plaintiff=s failure to prosecute the
case or to comply with the rules of procedure and the court’s orders.
Dated this 30th day of April 2026, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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