Shook v. Commissioner of Social Security
Filing
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ORDER DISMISSING CASE for Plaintiff's Failure to Prosecute, signed by Magistrate Judge Dennis L. Beck on 11/30/2011. CASE CLOSED. (Jessen, A)
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IN THE UNITED STATES DISTRICT COURT FOR THE
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EASTERN DISTRICT OF CALIFORNIA
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NANCY K. SHOOK,
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Plaintiff,
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vs.
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COMMISSIONER OF SOCIAL
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SECURITY,
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Defendant.
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____________________________________)
1:11cv0824 DLB
ORDER DISMISSING ACTION
WITHOUT PREJUDICE
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On May 20, 2011, Plaintiff, proceeding pro se and in forma pauperis, filed the present action
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for judicial review of the denial of Social Security benefits. On May 25, 2011, the Court issued
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summons along with instructions for completing and returning service documents to allow service by
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the United State Marshal.
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On October 3, 2011, after Plaintiff failed to return the service documents, the Court issued an
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Order to Show Cause why the action should not be dismissed for failure to properly serve the
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Complaint. Plaintiff was ordered to file a response, or return the service documents, within thirty
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(30) days of the date of service of the order.
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Over thirty (30) days have passed an Plaintiff has not filed a response or otherwise contacted
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the Court.
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DISCUSSION
Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and all
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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to
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control their dockets and “[i]n the exercise of that power they may impose sanctions including,
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where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).
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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,
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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46
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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963
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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring
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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for
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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);
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Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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lack of prosecution and failure to comply with local rules).
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In determining whether to dismiss an action for lack of prosecution, failure to obey a court
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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s
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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk
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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and
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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at
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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.
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In the instant case, the Court finds that the public’s interest in expeditiously resolving this
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litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case has
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been pending since May 20, 2011, and Plaintiff has failed to serve the Complaint.
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The third factor, risk of prejudice to defendants, also weighs in favor of dismissal, since a
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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.
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Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- public policy
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favoring disposition of cases on their merits -- is greatly outweighed by the factors in favor of
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dismissal discussed herein.
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Finally, a court’s warning to a party that his failure to obey the court’s order will result in
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dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262;
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Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s October 3, 2011, Order to Show
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Cause expressly stated that if she did not comply, the Court would recommend that the action be
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dismissed. Thus, Plaintiff had adequate warning that dismissal would result from her noncompliance
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with the Court’s order.
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Accordingly, this action is DISMISSED WITHOUT PREJUDICE for Plaintiff’s failure to
prosecute the action.
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This terminates this action in its entirety.
IT IS SO ORDERED.
Dated:
3b142a
November 30, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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