Leon Raymone Johnson v. Carolyn W. Colvin

Filing 27

ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE by Magistrate Judge Alexander F. MacKinnon. (See document for details). (ib)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LEON RAYMONE JOHNSON, Plaintiff, 12 13 14 15 16 Case No. ED CV 16-1638 AFM v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER DISMISSING COMPLAINT FOR FAILURE TO PROSECUTE Defendant. 17 18 On July 27, 2016, plaintiff filed a Complaint seeking review of the 19 Commissioner’s decision denying his application for benefits under the Social 20 Security Act. He subsequently was granted leave to proceed in forma pauperis. 21 The parties have consented to the jurisdiction of the undersigned Magistrate Judge 22 under 28 U.S.C. § 636(c). On February 3, 2017, the Court granted counsel’s 23 motion to withdraw as attorney of record and ordered counsel to mail the order to 24 plaintiff at his last known address. (ECF No. 25.) Plaintiff was advised that he 25 must file a Memorandum in Support of Plaintiff’s Complaint (“Memorandum”) by 26 March 3, 2017 or his failure would be deemed to be consent to a dismissal. (Id.) 27 Plaintiff also was advised that he could seek information and guidance concerning 28 1 self-representation at the Court’s Pro Se Clinic. (Id.) A review of the docket 2 indicated plaintiff did not file his Memorandum by March 3, 2017. 3 On March 13, 2017, the Court issued an Order to Show Cause requiring 4 plaintiff to show cause why this action should not be dismissed for failure to 5 prosecute. The order provided that plaintiff’s filing of his Memorandum by April 3, 6 2017 would discharge the show cause order. (ECF No. 26.) A review of the docket 7 as of the date of this Order indicates that plaintiff has not responded to the Order to 8 Show Cause or filed his Memorandum. 9 Assuming that plaintiff wanted to continue to pursue this action, he was 10 obligated to comply with the Court’s orders. Plaintiff has not filed a response to the 11 Order to Show Cause or his Memorandum and has not requested an enlargement of 12 time to do so. The Court possesses the inherent power to dismiss, sua sponte, for 13 lack of prosecution any action which has remained dormant because of the inaction 14 or dilatoriness of the parties seeking relief. Link v. Wabash Railroad Co., 370 U.S. 15 626, 630-31 (1962). The exercise of such power is recognized as necessary to 16 achieve the orderly and expeditious disposition of cases. Id. The Local Rules of 17 this Court further implement the policy of dismissing an action in which the 18 plaintiff has failed to prosecute diligently. Civil Local Rule 41. 19 The Ninth Circuit cited the following factors as relevant to the Court’s 20 determination whether to dismiss an action for failure to prosecute: “(1) the public’s 21 interest in expeditious resolution of litigation; (2) the court’s need to manage its 22 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring 23 disposition of cases on their merits; and (5) the availability of less drastic 24 sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). 25 The first two factors from Carey – public interest in expeditious resolution of 26 litigation and the need to manage the Court’s docket – weigh in favor of dismissal. 27 Plaintiff has failed to comply with the Court’s orders, despite being warned of the 28 consequences and granted sufficient time in which to do so. Plaintiff’s conduct 2 1 prevents the Court from moving this case towards disposition and indicates that 2 plaintiff does not intend to litigate this action diligently. 3 The third factor – prejudice to defendants – also weighs in favor of dismissal. 4 A rebuttable presumption of prejudice to defendants arises when a plaintiff 5 unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452- 6 53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted in this 7 case. 8 The fourth factor – public policy in favor of deciding cases on their merits – 9 ordinarily weighs against dismissal. However, it is plaintiff’s responsibility to 10 move towards disposition at a reasonable pace, to comply with the local rules, and 11 to avoid dilatory and evasive tactics. Morris v. Morgan Stanley, 942 F.2d 648, 652 12 (9th Cir. 1991). Plaintiff has not discharged this responsibility despite having been 13 granted more than sufficient time in which to do so. In these circumstances, the 14 public policy favoring resolution of disputes on the merits does not outweigh 15 plaintiff’s failure to comply with a court order. 16 The fifth factor – availability of less drastic sanctions – also weighs in favor 17 of dismissal. 18 plaintiff’s compliance with court orders or participation in its litigation. Moreover, 19 it does not appear to the Court that there are any less drastic sanctions available for 20 the Court to impose. Plaintiff has shown that he is either unwilling or unable to 21 comply with court orders by filing responsive documents. 22 23 The Court cannot move the case towards disposition without IT THEREFORE IS ORDERED that plaintiff’s Complaint is dismissed without prejudice for failure to prosecute. 24 25 DATED: April 10, 2017 26 27 28 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 3

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?