-GSA (SS) Stancil v. Commissioner of Social Security, No. 1:2011cv00922 - Document 15 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS Dismissing Plaintiff's Complaint signed by Magistrate Judge Gary S. Austin on 9/21/2011. Objections to F&R's due within thirty (30) days of service.(Bradley, A)
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-GSA (SS) Stancil v. Commissioner of Social Security Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 HUGH E. STANCIL, 11 12 13 14 15 ) ) Plaintiff, ) ) v. ) ) MICHAEL ASTRUE, Commissioner of ) Social Security, ) ) Defendant. ) _____________________________________ ) 1:11-cv-000922 GSA AWI FINDINGS AND RECOMMENDATIONS DISMISSING PLAINTIFF’S COMPLAINT 16 17 INTRODUCTION 18 Plaintiff, Hugh E. Stancil (“Plaintiff”), proceeding pro se, filed the instant action on June 19 8, 2011. (Doc. 1). Although it was unclear from the complaint, Plaintiff appeared to be 20 challenging a reduction of his Medicare benefits and/or his Social Security benefits. The Court 21 screened Plaintiff’s complaint and issued an order dismissing the complaint with leave to amend 22 on July 7, 2011. (Doc. 7). In the order, the Court specifically advised Plaintiff that his claims 23 needed to be clearly defined and any amended complaint needed to include proof that he had 24 exhausted his administrative remedies. After granting a request for an extension of time, 25 26 27 28 1 Dockets.Justia.com 1 Plaintiff was ordered to file an amended complaint no later than September 12, 2011.1 (Doc. 9). 2 On September 8, 2011, Plaintiff filed a form entitled “Request for Reconsideration” 3 which appears to be a form issued by the Social Security Administration . (Doc. 12). There is no 4 date on the form indicating when it was signed, or whether it was in fact filed with the Social 5 Security Administration. Based on the filing of this document, Plaintiff appears to be 6 challenging the amount of his Social Security benefits. As previously explained to Plaintiff, 7 exhaustion of administrative remedies in a Social Security case requires that he appear for a 8 hearing before an Administrative Law Judge and that he file an appeal with the Appeals Council. 9 20 C.F.R. §§ 404.967 and 404.968. Based on Plaintiff’s filing, it appears that this procedure was 10 not followed and he has failed to exhausted his administrative remedies. Moreover, to date, 11 Plaintiff has not filed an amended complaint as directed. As such, this Court will recommend 12 that Plaintiff’s complaint be dismissed for failure to follow a Court order. 13 14 DISCUSSION Local Rule 11-110 provides that “a failure of counsel or of a party to comply with these 15 Local Rules or with any order of the Court may be grounds for the imposition by the Court of any 16 and all sanctions . . . within the inherent power of the Court.@ District courts have the inherent 17 power to control their dockets and Ain the exercise of that power, they may impose sanctions 18 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 19 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s 20 failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. 21 See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with 22 local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to 23 comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 24 25 26 27 28 1 Plaintiff was also ordered to return consent forms indicating whether or not he consented to magistrate judge jurisdiction. Plaintiff returned the form, however, he indicated that he both consented and declined magistrate judge jurisdiction. (Doc. 11). Because of this ambiguity, a district court judge was assigned to the case and dismissal of this action will be completed via Findings and Recommendations. 2 1 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs 2 to keep court apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 3 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 4 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In 5 determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or 6 failure to comply with local rules, the court must consider several factors: (1) the public’s interest 7 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 8 prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; 9 and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 10 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 11 1423-24. 12 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 13 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because it 14 appears Plaintiff is unable to state a claim. Even if he files an amended complaint, it appears that 15 he has not exhausted his administrative remedies as outlined in this Court order dated July 7, 16 2011. The third factor, risk of prejudice to defendant, also weighs in favor of dismissal because a 17 presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. 18 Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring 19 disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. 20 Finally, a court’s warning to a party that his failure to obey the court’s order will result in 21 dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 22 Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order requiring Plaintiff to 23 file an amended complaint was clear that dismissal would result from non-compliance with the 24 Court's order. (Doc. 7 at pg. 6). 25 26 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 27 28 3 1 2 Plaintiff’s failure to comply with a court order. This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, 3 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). 4 Within thirty (30) days after being served with a copy, Plaintiff may file written objections with 5 the Court. This document should be captioned “Objections to Magistrate Judge’s Findings and 6 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 7 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified 8 time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 9 (9th Cir. 1991). 10 11 12 IT IS SO ORDERED. Dated: 6i0kij September 21, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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