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)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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LEON RAYMONE JOHNSON,
Plaintiff,

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Case No. ED CV 16-1638 AFM

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER DISMISSING COMPLAINT
FOR FAILURE TO PROSECUTE

Defendant.

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On July 27, 2016, plaintiff filed a Complaint seeking review of the

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Commissioner’s decision denying his application for benefits under the Social

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Security Act. He subsequently was granted leave to proceed in forma pauperis.

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The parties have consented to the jurisdiction of the undersigned Magistrate Judge

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under 28 U.S.C. § 636(c). On February 3, 2017, the Court granted counsel’s

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motion to withdraw as attorney of record and ordered counsel to mail the order to

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plaintiff at his last known address. (ECF No. 25.) Plaintiff was advised that he

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must file a Memorandum in Support of Plaintiff’s Complaint (“Memorandum”) by

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March 3, 2017 or his failure would be deemed to be consent to a dismissal. (Id.)

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Plaintiff also was advised that he could seek information and guidance concerning

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self-representation at the Court’s Pro Se Clinic. (Id.) A review of the docket

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indicated plaintiff did not file his Memorandum by March 3, 2017.

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On March 13, 2017, the Court issued an Order to Show Cause requiring

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plaintiff to show cause why this action should not be dismissed for failure to

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prosecute. The order provided that plaintiff’s filing of his Memorandum by April 3,

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2017 would discharge the show cause order. (ECF No. 26.) A review of the docket

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as of the date of this Order indicates that plaintiff has not responded to the Order to

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Show Cause or filed his Memorandum.

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Assuming that plaintiff wanted to continue to pursue this action, he was

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obligated to comply with the Court’s orders. Plaintiff has not filed a response to the

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Order to Show Cause or his Memorandum and has not requested an enlargement of

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time to do so. The Court possesses the inherent power to dismiss, sua sponte, for

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lack of prosecution any action which has remained dormant because of the inaction

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or dilatoriness of the parties seeking relief. Link v. Wabash Railroad Co., 370 U.S.

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626, 630-31 (1962). The exercise of such power is recognized as necessary to

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achieve the orderly and expeditious disposition of cases. Id. The Local Rules of

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this Court further implement the policy of dismissing an action in which the

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plaintiff has failed to prosecute diligently. Civil Local Rule 41.

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The Ninth Circuit cited the following factors as relevant to the Court’s

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determination whether to dismiss an action for failure to prosecute: “(1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its

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docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring

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disposition of cases on their merits; and (5) the availability of less drastic

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sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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The first two factors from Carey – public interest in expeditious resolution of

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litigation and the need to manage the Court’s docket – weigh in favor of dismissal.

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Plaintiff has failed to comply with the Court’s orders, despite being warned of the

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consequences and granted sufficient time in which to do so. Plaintiff’s conduct
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prevents the Court from moving this case towards disposition and indicates that

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plaintiff does not intend to litigate this action diligently.

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The third factor – prejudice to defendants – also weighs in favor of dismissal.

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A rebuttable presumption of prejudice to defendants arises when a plaintiff

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unreasonably delays prosecution of an action. See In re Eisen, 31 F.3d 1447, 1452-

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53 (9th Cir. 1994). Nothing suggests that such a presumption is unwarranted in this

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case.

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The fourth factor – public policy in favor of deciding cases on their merits –

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ordinarily weighs against dismissal. However, it is plaintiff’s responsibility to

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move towards disposition at a reasonable pace, to comply with the local rules, and

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to avoid dilatory and evasive tactics. Morris v. Morgan Stanley, 942 F.2d 648, 652

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(9th Cir. 1991). Plaintiff has not discharged this responsibility despite having been

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granted more than sufficient time in which to do so. In these circumstances, the

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public policy favoring resolution of disputes on the merits does not outweigh

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plaintiff’s failure to comply with a court order.

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The fifth factor – availability of less drastic sanctions – also weighs in favor

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of dismissal.

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plaintiff’s compliance with court orders or participation in its litigation. Moreover,

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it does not appear to the Court that there are any less drastic sanctions available for

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the Court to impose. Plaintiff has shown that he is either unwilling or unable to

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comply with court orders by filing responsive documents.

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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.

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DATED: April 10, 2017

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ALEXANDER F. MacKINNON
UNITED STATES MAGISTRATE JUDGE
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