Jackson v. Commissioner of Social Security

Filing 21

ORDER DISMISSING Action, signed by Magistrate Judge Dennis L. Beck on 10/11/11: The Court ORDERS that the action be DISMISSED WITHOUT PREJUDICE. (CASE CLOSED)(Hellings, J)

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IN THE UNITED STATES DISTRICT COURT FOR THE

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EASTERN DISTRICT OF CALIFORNIA

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MICHAEL JACKSON,

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Plaintiff,
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vs.
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COMMISSIONER OF SOCIAL
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SECURITY,
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Defendant.
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____________________________________)

1:10cv02418 DLB

ORDER DISMISSING ACTION

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On December 30, 2010, Plaintiff, through counsel, filed the present action for judicial review
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of the denial of Social Security benefits. On August 8, 2011, the Court granted counsel’s request to
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withdraw and substituted Plaintiff in pro se. Pursuant to the Scheduling Order in this case,
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Plaintiff’s opening brief was due on or about August 17, 2011.
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Plaintiff did not file an opening brief, and on September 8, 2011, the Court issued an order to
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show cause why the action should not be dismissed for Plaintiff’s failure to file an opening brief.
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Plaintiff was ordered to respond within twenty (20) days. More than twenty days have passed and
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Plaintiff has not responded or otherwise contacted the Court.
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DISCUSSION
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Local Rule 110 provides that “failure of counsel or of a party to comply with these Local
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Rules or with any order of the Court may be grounds for the imposition by the Court of any and all

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sanctions . . . within the inherent power of the Court.” District courts have the inherent power to

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control their dockets and “[i]n the exercise of that power, they may impose sanctions including,

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where appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986).

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A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action,

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failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46

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F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963

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F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring

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amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for

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failure to comply with local rule requiring pro se plaintiffs to keep court apprised of address);

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Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply

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with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of

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prosecution and failure to comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a court

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order, or failure to comply with local rules, the court must consider several factors: (1) the public’s

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interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk

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of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and,

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(5) the availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at

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1423-24; Malone, 833 F.2d at 130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53.

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In the instant case, the Court finds that the public’s interest in expeditiously resolving this

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litigation and the Court’s interest in managing the docket weigh in favor of dismissal. This case has

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been pending since December 30, 2010, but no opening brief has been filed. Plaintiff has made no

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effort to contact this Court or prosecute this case. The third factor, risk of prejudice to defendant,

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also weighs in favor of dismissal, since a presumption of injury arises from the occurrence of

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unreasonable delay in prosecuting an action. Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir.

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1976). The fourth factor -- public policy favoring disposition of cases on their merits -- is greatly

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outweighed by the factors in favor of dismissal discussed herein. Finally, a court’s warning to a

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party that his failure to obey the court’s order will result in dismissal satisfies the “consideration of

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alternatives” requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at

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1424. The Court’s September 8, 2011, order to show cause expressly stated that failure to respond

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would result in dismissal of the action. Thus, Plaintiff had adequate warning that dismissal would

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result from non-compliance with the Court’s order.

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ORDER

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Accordingly, based on Plaintiff’s failure to follow the Court’s orders and failure to prosecute,
the Court orders that the action be DISMISSED WITHOUT PREJUDICE.

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This terminates this action in its entirety.

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IT IS SO ORDERED.

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Dated:
3b142a

October 11, 2011

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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