(SS) Cogburn v. Commissioner of Social Security, No. 1:2012cv01524 - Document 4 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of This Action for a Failure to Follow a Court Order and to Prosecute signed by Magistrate Judge Gary S. Austin on 10/23/2012. Objections to F&R's due within ten (10) days of service of this recommendation..(Martinez, A)

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(SS) Cogburn v. Commissioner of Social Security Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 JEFFREY L. COGBURN, 11 Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) 1:12-cv-01524 LJO GSA FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF THIS ACTION FOR A FAILURE TO FOLLOW A COURT ORDER AND TO PROSECUTE 16 17 18 19 On September 14, 2012, Plaintiff Jeffrey L. Cogburn (“Plaintiff”) filed a complaint challenging a denial of his application for benefits under the Social Security Act. (Doc. 1.) 20 On September 18, 2012, this Court dismissed Plaintiff’s complaint for a failure to state a 21 claim. Nevertheless, Plaintiff was provided an opportunity to amend his complaint to cure the 22 deficiencies identified therein. (Doc. 2.) More particularly, Plaintiff was provided with thirty days 23 within which to amend his complaint. (See Doc. 2 at 5.) As of this date, Plaintiff has failed to file 24 an amended complaint. 25 DISCUSSION 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these Rules 27 or with any order of the Court may be grounds for imposition by the Court of any and all sanctions 28 . . . within the inherent power of the Court.” (Emphasis added.) District courts have the inherent 1 Dockets.Justia.com 1 power to control their dockets and “in the exercise of that power, they may impose sanctions 2 including, where appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 3 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party’s failure to 4 prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g. 5 Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); 6 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 7 order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 8 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised of 9 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 10 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 11 failure to lack of prosecution and failure to comply with local rules). In determining whether to 12 dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local 13 rules, the Court must consider several factors: (1) the public’s interest in expeditious resolution of 14 litigation; (2) the Court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 15 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 16 alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at 130; 17 Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. 18 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 19 litigation and the Court’s interest in managing the docket weigh in favor of dismissal, as this case 20 has been pending from September 14, 2012, and yet there is no indication that Plaintiff intends to 21 prosecute this action. The third factor, risk of prejudice to the defendant, also weighs in favor of 22 dismissal, since a presumption of injury arises from the occurrence of unreasonable delay in 23 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor -- 24 public policy favoring disposition of cases on their merits -- is greatly outweighed by the factors in 25 favor of dismissal discussed herein. 26 Finally, a court’s warning to a party that his failure to obey the Court’s order will result in 27 dismissal satisfies the “consideration of alternatives” requirement. Ferdik v. Bonzelet, 963 F.2d at 28 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. This Court’s September 18, 2012, order 2 1 provided that Plaintiff had thirty days from the date of the order within which to file an amended 2 complaint. Additionally, Plaintiff was expressly warned: “If Plaintiff fails to file an amended 3 complaint, the action will be dismissed for failure to follow a court order.” (See Doc. 2 at 5, 4 emphasis in original.) Thus, Plaintiff has had adequate warning that dismissal would result from 5 noncompliance with the Court’s order. 6 7 8 RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for Plaintiff’s failure to comply with a court order. 9 These findings and recommendations are submitted to the district judge assigned to this 10 action, pursuant to Title 28 of the United States Code section 636(b)(1)(B) and this Court’s Local 11 Rule 304. Within ten (10) days of service of this recommendation, any party may file written 12 objections to these findings and recommendations with the Court and serve a copy on all parties. 13 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 14 Recommendations.” 15 recommendations pursuant to Title 28 of the United States Code section 636(b)(1)(C). The parties 16 are advised that failure to file objections within the specified time may waive the right to appeal the 17 district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). The district judge will review the magistrate judge’s findings and 18 19 20 IT IS SO ORDERED. Dated: 6i0kij October 23, 2012 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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