(SS) Mays v. Commissioner of Social Security, No. 2:2011cv02405 - Document 20 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/8/2012 RECOMMENDING that this action be dismissed, without prejuice, for lack of prosecution and failure to comply with court rules and orders Referred to Judge John A. Mendez; Objections due within 14 days after being served with these F & R's. (Reader, L)

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(SS) Mays v. Commissioner of Social Security Doc. 20 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TONIANN MAYS, 12 13 14 No. 2:11-CV-2405-JAM-CMK Plaintiff, vs. FINDINGS AND RECOMMENDATIONS COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 / 17 18 19 Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 On June 15, 2012, the court directed plaintiff to show cause in writing why this 21 action should not be dismissed for failure to file a dispositive motion within the time prescribed 22 in the court’s scheduling order. Plaintiff’s response was due within 30 days of the date of the 23 order. Plaintiff was warned that failure to comply may result in dismissal of this action for lack 24 of prosecution and failure to comply with court rules and orders. See Local Rule 110. To date, 25 plaintiff has neither submitted a dispositive motion nor responded to the June 15, 2012, order to 26 show cause. 1 Dockets.Justia.com 1 The court must weigh five factors before imposing the harsh sanction of 2 dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. 3 U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's 4 interest in expeditious resolution of litigation; (2) the court's need to manage its own docket; 5 (3) the risk of prejudice to opposing parties; (4) the public policy favoring disposition of cases on 6 their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 7 46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an 8 appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor. 9 See Malone, 833 F.2d at 132-33 & n.1. 10 Having considered these factors, and in light of plaintiff’s failure to prosecute this 11 action by filing a dispositive motion as well as plaintiff’s failure to comply with the court’s June 12 15, 2012, order to show cause, the court finds that dismissal is appropriate. 13 Based on the foregoing, the undersigned recommends that this action be 14 dismissed, without prejudice, for lack of prosecution and failure to comply with court rules and 15 orders. 16 These findings and recommendations are submitted to the United States District 17 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court. Responses to objections shall be filed within 14 days after service of 20 objections. Failure to file objections within the specified time may waive the right to appeal. 21 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 22 23 24 25 DATED: August 8, 2012 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 26 2

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