Gomez v. Commissioner of Social Security

Filing 5

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Failure to Follow a Court Order re 3 signed by Magistrate Judge Gary S. Austin on 3/7/2011. Referred to Judge Anthony W. Ishii. Objections to F&R due by 4/11/2011. (Bradley, A)

-GSA (SS) Gomez v. Commissioner of Social Security

Doc. 5

1 2 3 4 5 6 7 8 9 10 11 12 JOE GOMEZ III, 13 14 15 16 17 18 19 On January 14, 2011, Plaintiff, Joe Gomez III, filed the instant action. Plaintiff appears to be 20 challenging a denial of his application for disability benefits under Titles II and XVI of the Social 21 Security Act. Following a preliminary review of the complaint, on January 21, 2011, the 22 undersigned issued an order dismissing the complaint because it failed to state a claim. (Doc. 3). 23 However, Plaintiff was granted leave to file an amended complaint within thirty (30) days. Over 24 thirty (30) days have passed, and Plaintiff has not complied with the Court's order. 25 DISCUSSION 26 Local Rule 11-110 provides that "a failure of counsel or of a party to comply with these Local 27 Rules or with any order of the Court may be grounds for the imposition by the Court of any and all 28
U .S. D istrict C ourt E. D . C alifornia

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA ) ) Plaintiff, ) ) v. ) ) ) COMMISSIONER OF SOCIAL ) SECURITY, ) ) Defendant. ) ____________________________________) 1:11cv76 GSA AWI FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF'S FAILURE TO FOLLOW A COURT ORDER (Doc. No. 3)

1
Dockets.Justia.com

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
U .S. D istrict C ourt E. D . C alifornia

sanctions . . . within the inherent power of the Court.@ District courts have the inherent power to control their dockets and Ain the exercise of that power, they may impose sanctions including, where appropriate . . . dismissal of a case." Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to comply with local rules). In determining whether to dismiss an action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the court must consider several factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In the instant case, the Court finds that the public's interest in expeditiously resolving this litigation and the Court's interest in managing the docket weigh in favor of dismissal because this case has been pending in this Court since January 14, 2011, and it does not appear that Plaintiff can cure the deficiencies in the complaint. The third factor, risk of prejudice to defendants, also weighs in favor of dismissal because a presumption of injury arises from any unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in favor of dismissal. Finally, a court's warning to a party that his failure to obey the court's order will result in dismissal satisfies the "consideration of alternatives" requirement. Ferdik, 963 F.2d at 1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court's order to file an amended 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15

petition was clear that dismissal would result from non-compliance with the Court's order. RECOMMENDATION Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for Plaintiff's failure to comply with a court order. This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B). Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendation." The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

IT IS SO ORDERED. Dated: 6i0kij

March 7, 2011

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

16 17 18 19 20 21 22 23 24 25 26 27 28
U .S. D istrict C ourt E. D . C alifornia

3