(SS)(PS) Slattery v. Commissioner of Social Security, No. 2:2018cv02593 - Document 11 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 3/27/2019 RECOMMENDING that this action be dismissed with prejudice. The Clerk be directed to vacate all dates and close this case. IT IS HEREBY ORDERED that the C lerk shall randomly assign a United States District Judge to this action. All pleading, discovery, and motion practice in this action are STAYED. The new case number is 2:18-cv-2593-TLN-KJN (SS)(PS). Referred to Judge Troy L. Nunley. Objections to F&R due within 14 days. (Zignago, K.)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN SLATTERY, 12 13 14 15 16 No. 2:18-cv-02593-KJN (SS) Plaintiff, v. ORDER AND FINDINGS AND RECOMMENDATIONS COMMISSIONER OF SOCIAL SECURITY, Defendant. 17 18 Plaintiff, who proceeds without counsel and in forma pauperis, commenced this action on 19 September 21, 2018. (ECF Nos. 1-3.) For the third time, on February 27, 2019, the court ordered 20 plaintiff to show cause in writing why the action should not be dismissed based on his failure to 21 prosecute the case. (ECF Nos. 6, 8, 10.) For the fourth time, plaintiff was ordered, to submit the 22 necessary documents to the United States Marshal so that defendant can be served, and to file a 23 statement with the court indicating that he had done so. (See ECF Nos. 3, 6, 8, 10.) 24 On January 23, 2019, in response to the court’s first order to show cause (ECF No. 6), 25 plaintiff indicated that he had had an unexplained “family crisis” that had delayed his attention to 26 this case, and he requested an additional five-week extension of time to serve the complaint. 27 (ECF No. 7.) This response did not sufficiently detail why plaintiff had failed to prosecute his 28 case. Nonetheless, the court provided plaintiff with an additional fourteen days to respond to the 1 1 order to show cause and provide the United States Marshal with the necessary documents. (ECF 2 No. 8 at 2.) 3 Plaintiff responded, on February 8, 2019, and asserted that he was “in need of some 4 financial assistance to make copies” and he asked the court whether “there is a resource available 5 to assist [him] in covering the cost of making copies.” (ECF No. 9.) The court informed plaintiff 6 that it does not have any such resource, and that plaintiff had once again failed to adequately 7 respond to the court’s order to show cause. (ECF No. 10 at 2.) 8 9 Due to plaintiff’s multiple failures, the court considered dismissal of the action. However, “in light of plaintiff’s pro se status and the court’s desire to resolve the action on the merits,” the 10 court gave plaintiff until March 13, 2019, to appropriately respond to the court’s order to show 11 cause and provide the necessary documents to the United States Marshal. (ECF No. 10 at 2.) 12 Plaintiff was specifically admonished that no further extensions would be granted, absent a 13 showing of good cause. (Id.) 14 Although the applicable deadline has now passed, plaintiff has failed to respond to the 15 order to show cause or provide proof that the documents were submitted to the United States 16 Marshal. Therefore, the court recommends dismissal at this juncture. 17 Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply 18 with these Rules or with any order of the Court may be grounds for imposition by the Court of 19 any and all sanctions authorized by statute or Rule or within the inherent power of the Court.” 20 Moreover, Eastern District Local Rule 183(a) provides, in part: 21 22 23 24 Any individual representing himself or herself without an attorney is bound by the Federal Rules of Civil or Criminal Procedure, these Rules, and all other applicable law. All obligations placed on “counsel” by these Rules apply to individuals appearing in propria persona. Failure to comply therewith may be ground for dismissal, judgment by default, or any other sanction appropriate under these Rules. 25 See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the 26 same rules of procedure that govern other litigants”) (overruled on other grounds). A district 27 court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to 28 Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or 2 1 fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local 2 rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act 3 sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S. 4 Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action 5 pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute 6 or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52, 7 53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground 8 for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal 9 Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with 10 any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir. 11 1986) (per curiam) (stating that district courts have inherent power to control their dockets and 12 may impose sanctions including dismissal or default). 13 A court must weigh five factors in determining whether to dismiss a case for failure to 14 prosecute, failure to comply with a court order, or failure to comply with a district court’s local 15 rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider: 16 17 18 (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. 19 Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46 20 F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of 21 conditions precedent before the judge can do anything, but a way for a district judge to think 22 about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 23 (9th Cir. 2006). 24 Although involuntary dismissal can be a harsh remedy, on balance the five relevant 25 factors weigh in favor of dismissal here. The first two Ferdik factors strongly support dismissal, 26 given that plaintiff’s failure to comply with the court’s orders and failure to prosecute his case 27 have unreasonably delayed the progress of this litigation. 28 The third Ferdik factor also favors dismissal. While defendant Commissioner of Social 3 1 Security has not yet appeared in the case, plaintiff’s failure to prosecute the case has hampered 2 defendant’s ability to move this case forward towards resolution and achieve finality regarding 3 the Commissioner’s underlying disability determination. 4 Additionally, the fifth Ferdik factor, which considers the availability of less drastic 5 measures, also supports dismissal. As noted above, the court has already attempted less drastic 6 measures, with multiple orders to show cause, prior to recommending dismissal. However, 7 plaintiff has failed to adequately respond to the court’s orders, completely ignoring the court’s 8 most recent order. Further, the court finds no suitable alternative to dismissal at this juncture. 9 Given plaintiff’s in forma pauperis status, the imposition of monetary sanctions would be futile, 10 especially in light of the nature of this case—a challenge to the Commissioner’s determination 11 that plaintiff is not entitled to Disability Insurance Benefits. Moreover, the court is unable to 12 frame any meaningful issue or evidentiary sanctions based on the limited record before it. 13 Finally, the court finds that the fourth Ferdik factor, which addresses the public policy 14 favoring disposition of cases on the merits, does not materially counsel against dismissal. If 15 anything, a disposition on the merits has been hindered by plaintiff’s own failure to comply with 16 the court’s orders and prosecute his case. Indeed, plaintiff seems incapable and/or unwilling to 17 complete even the initial step of having defendant served. In any event, the court finds that the 18 fourth Ferdik factor is outweighed by the other Ferdik factors. 19 Consequently, dismissal is appropriate. 20 Accordingly, IT IS HEREBY RECOMMENDED that: 21 1. The action be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 22 41(b). 23 2. The Clerk of Court be directed to vacate all dates and close this case. 24 In light of these recommendations, IT IS ALSO HEREBY ORDERED that: 25 1. The Clerk of Court shall randomly assign a United States District Judge to this action. 26 2. All pleading, discovery, and motion practice in this action are STAYED pending 27 resolution of the findings and recommendations. With the exception of objections to the findings 28 and recommendations and any non-frivolous motions for emergency relief, the court will not 4 1 entertain or respond to any motions and other filings until the findings and recommendations are 2 resolved. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14) 5 days after being served with these findings and recommendations, any party may file written 6 objections with the court and serve a copy on all parties. Such a document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 8 shall be served on all parties and filed with the court within fourteen (14) days after service of the 9 objections. The parties are advised that failure to file objections within the specified time may 10 waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th 11 Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). 12 13 IT IS SO ORDERED AND RECOMMENDED. Dated: March 27, 2019 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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