(SS)(PS) O'Connell v. Commissioner of Social Security, No. 2:2019cv01457 - Document 28 (E.D. Cal. 2020)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 7/29/2020 DIRECTING the Clerk to randomly assign a District Judge. Judge Morrison C. England, Jr. added. It is hereby RECOMMENDED that this action be dismissed with prejudice and this case closed. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these Findings and Recommendations. (Tupolo, A)

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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 MELISSA O’CONNELL, 12 13 14 15 16 17 No. 2:19-cv-01457 CKD Plaintiff, v. ORDER & ANDREW SAUL, COMMISSIONER OF SOCIAL SECURITY, FINDINGS AND RECOMMENDATIONS Defendant. Plaintiff, proceeding pro se and in forma pauperis, filed the complaint in this Social 18 Security action on July 30, 2019 and a First Amended Complaint (FAC) on September 6, 2019. 19 Defendant filed an answer to the FAC and lodged the administrative transcript on March 2, 2020. 20 On June 9, 2020, the court issued an order to show cause why this case should not be 21 dismissed for lack of prosecution. The court advised plaintiff that failure to timely file the 22 required writing would result in dismissal of the action. On June 25, 2020, the court granted 23 plaintiff a 30-day extension of time to show cause. The period to respond to the order has passed, 24 and plaintiff has not filed a response. 25 The Federal Rules of Civil Procedure provide for dismissal of actions based on lack of 26 prosecution. Fed. R. Civ. P. 41(b). In determining whether to dismiss for lack of prosecution, 27 generally the court considers (1) the public’s interest in expeditious resolution of litigation, (2) the 28 court’s need to manage its docket, (3) the risk of prejudice to the defendants, (4) the public policy 1 1 favoring disposition of cases on their merits, and (5) the availability of less drastic sanctions. See, 2 e.g., Al-Torki v. Kaempen, 78 F.3d 1381, 1384 (9th Cir. 1996). The court may dismiss a case sua 3 sponte for lack of prosecution by the plaintiff. Hamilton Copper & Steel Corp. v. Primary Steel, 4 Inc., 898 F.2d 1428 (9th Cir. 1990). Sua sponte dismissal requires a “close focus” on 5 consideration of “less drastic alternatives” and whether or not there has been a “warning of 6 imminent dismissal of the case.” Oliva v. Sullivan, 958 F.2d 272, 274 (9th Cir. 1992). 7 In determining that this action will be dismissed, the court has considered all the factors 8 set forth in Al-Torki. The first two factors on their face favor the imposition of sanctions in this 9 case brought by plaintiff and which has been proceeding forward since plaintiff initiated this 10 action one year ago on July 30, 2019. See Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 11 1990). Regarding the third factor, defendant has filed an answer and lodged the administrative 12 record, and would be prejudiced by the need for further litigation of this matter despite plaintiff’s 13 non-responsiveness. Moreover, delay itself generally is prejudicial. While the fourth factor 14 favors resolution on the merits, in this case plaintiff has declined to file a motion for summary 15 judgment and/or remand within 45 days of being served with a copy of the administrative record, 16 as required by the scheduling order. 17 Focusing on the fifth Al-Torki factor and warning regarding imminent dismissal, as 18 required by Oliva, the court in its order of June 9, 2020 advised plaintiff that this action was 19 subject to dismissal if plaintiff failed to respond to the order to show cause. In light of plaintiff’s 20 failures, the court concludes there is no suitable alternative less drastic sanction to dismissal. The 21 undersigned will therefore recommend this action be dismissed for failure to prosecute the action 22 and for failure to comply with court orders and Local Rules. See Fed. R. Civ. P. 41(b); L.R. 110. 23 24 25 26 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court shall assign a district judge to this action. IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice and this case closed. 27 These findings and recommendations are submitted to the United States District Judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 2 1 after being served with these findings and recommendations, any party may file written 2 objections with the court and serve a copy on all parties. Such a document should be captioned 3 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 5 Ylst, 951 F.2d 1153 (9th Cir. 1991). 6 Dated: July 29, 2020 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 2 / oconnell1457.failtopros 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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