Gamble v. Commissioner of Social Security

Filing 10

ORDER Vacating 8 Findings and Recommendations signed by Magistrate Judge Gary S. Austin on 4/7/2009. Documents to be returned by 5/11/2009.(Esteves, C)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ) ) ) ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner, ) ) ) Defendant. ) ____________________________________) STALLA GAMBLE, 1:08-cv-1744 OWW GSA ORDER VACATING FINDINGS AND RECOMMENDATION (Document 8) IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

On November 14, 2008, Plaintiff filed the present action in this Court. Plaintiff seeks review of the Commissioner's denial of her application for benefits. On November 14, 2008, Plaintiff also filed a motion to proceed in forma pauperis. Thereafter, on November 18, 2008, this Court granted Plaintiff's motion to proceed in forma pauperis and ordered that the Clerk of this Court issue summons and the United States marshal serve a copy of the complaint, summons and order upon the defendant "as directed by the plaintiff." (Document 4). The order granting the motion included the following attachments: (1) Instructions and Notice of Submission and (2) USM-285 Forms. The instructions directed Plaintiff to provide the clerk's office with the original and five copies of the Summons, five copies of the order directing service by the U.S. Marshal, five copies of the complaint, one completed USM-285 form addressed to the Social Security Administration and five copies of any other documents to be served. Plaintiff was served with the aforementioned order and 1

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attachments by mail on November 18, 2008. As of January 29, 2009, Plaintiff had not submitted the required documents to the Clerk's Office for service by the United States Marshal on the defendant(s). Accordingly, the court issued an Order for Plaintiff to Show Cause why the action should not be dismissed for failure to complete and return the service documents. (Doc. 7). Plaintiff was ordered to file a written response to the Order to Show Cause within twenty (20) days from the date of the order. Plaintiff did not respond to the Order to Show Cause. Due to the lack of response, on March 3, 2009, this court issued Findings and Recommendation recommending that this action be dismissed for failure to comply with a court order. Plaintiff was given thirty (30) days to file any objections to the Findings and Recommendation. On April 2, 2009, Plaintiff filed objections indicating that she never received the Order to Show Cause dated March 3, 2009. Plaintiff states that she only became aware of the order after calling the Clerk's Office on March 10, 2009. Plaintiff requests that the court not dismiss her complaint and that the case proceed as scheduled. Based on Plaintiff's representations, the court will vacate the Findings and Recommendation issued on March 3, 2009. However, the court notes that the address Plaintiff provided on her most recent pleading is the same address that all previous orders were sent to. If Plaintiff now has a different address, Plaintiff must notify the court as soon as possible. Plaintiff will be given another opportunity to provide the court with the necessary information so that this case may proceed. Specifically, Plaintiff shall follow the directions outlined in this court's order dated November 18, 2008, and provide the clerk's office with the original and five copies of the Summons, five copies of the order directing service by the U.S. Marshal, five copies of the complaint, one completed USM-285 form addressed to the Social Security Administration and five copies of any other documents to be served. Plaintiff shall return all of the aforementioned documents to the Clerk's Office within thirty (30) days of this order. Failure to comply with this order may result in this case being dismissed. /// 2

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Accordingly, it is hereby ordered that : 1) The Findings and Recommendation issued on March 3, 2009 is hereby VACATED; 2) The Clerk of the Court is directed to include with this order, a copy of the this court's order and summons issued on November 18, 2009 (Docs. 4 and 5), which outlines in detail instructions regarding service of documents Plaintiff must follow in order for this case to proceed; and 3) Plaintiff shall return all required documents to the Clerk's Office no later than thirty (30) days from the date of this order. IT IS SO ORDERED. Dated:

April 7, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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