-GSA (SS) Benson v. Commissioner of Social Security, No. 1:2011cv01321 - Document 8 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for Plaintiff's failure to comply with a court order; re 1 Social Security Complaint filed by Gerald A. Benson ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 09/30/2011. Objections to F&R due by 11/3/2011(Martin-Gill, S)

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-GSA (SS) Benson v. Commissioner of Social Security Doc. 8 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF CALIFORNIA 12 GERALD BENSON, 13 14 15 16 17 18 ) ) Plaintiff, ) ) v. ) ) ) COMMISSIONER OF SOCIAL ) SECURITY, ) ) Defendant. ) ____________________________________) 1:11-cv-1321 GSA LJO FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF’S FAILURE TO FOLLOW A COURT ORDER (Doc. No. 6) 19 On August 11, 2011, Plaintiff, Gerald Bensen, filed the instant action. Plaintiff appears to be 20 challenging a denial of his application for social security benefits. Following a preliminary review of 21 the complaint, on August 22, 2011, the undersigned issued an order dismissing the complaint 22 because it failed to state a claim. (Doc. 6). However, Plaintiff was granted leave to file an amended 23 complaint and he was advised that any amended complaint must be filed no later than September 24 23, 2011. To date, no amended complaint has been filed. 25 DISCUSSION 26 Local Rule 11-110 provides that “a failure of counsel or of a party to comply with these Local 27 Rules or with any order of the Court may be grounds for the imposition by the Court of any and all 28 U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 sanctions . . . within the inherent power of the Court.@ District courts have the inherent power to 2 control their dockets and Ain the exercise of that power, they may impose sanctions including, where 3 appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 4 1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 5 action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 7 Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order 8 requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of 10 address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to 11 comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for 12 lack of prosecution and failure to comply with local rules). In determining whether to dismiss an 13 action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the 14 court must consider several factors: (1) the public’s interest in expeditious resolution of litigation; 15 (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 16 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 17 alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; 18 Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 19 In the instant case, the Court finds that the public’s interest in expeditiously resolving this 20 litigation and the Court’s interest in managing the docket weigh in favor of dismissal because this 21 case has been pending in this Court since August 11, 2011, and it does not appear that Plaintiff can 22 cure the deficiencies in the complaint. The third factor, risk of prejudice to defendants, also weighs 23 in favor of dismissal because a presumption of injury arises from any unreasonable delay in 24 prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, 25 public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in 26 favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will 27 result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 28 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order to file an amended U .S. D istrict C ourt E. D . C alifornia 2 1 complaint was clear that dismissal would result from non-compliance with the Court's order. (Doc. 6 2 at pg. 6). 3 RECOMMENDATION 4 Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for 5 6 Plaintiff's failure to comply with a court order. This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill, 7 United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). 8 Within thirty (30) days after being served with a copy, Plaintiff may file written objections with the 9 court and serve a copy on all parties. Such a document should be captioned “Objections to 10 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 11 Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file 12 objections within the specified time may waive the right to appeal the District Court’s order. 13 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 16 IT IS SO ORDERED. Dated: cf0di0 September 30, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 3

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