Boen v. Commissioner of Social Security

Filing 13

ORDER DISMISSING Plaintiff's Complaint and Closing the Case, signed by Magistrate Judge Sheila K. Oberto on 03/19/2012. CASE CLOSED(Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALVIN R. BOEN,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE,
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Commissioner of Social Security,
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Defendant.
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_____________________________________ )

Case No.: 1:11-cv-00898-SKO
ORDER DISMISSING PLAINTIFF'S
COMPLAINT AND CLOSING CASE

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I.

INTRODUCTION

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On February 15, 2012, the Court issued an order to show cause why the case should not be

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dismissed due to Plaintiff Alvin R. Boen's ("Plaintiff") failure to comply with the Court's scheduling

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order related to filing an opening brief. (Doc. 10.) Plaintiff did not respond to the order to show

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cause. For the reasons set forth below, Plaintiff's complaint is DISMISSED.

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II.

BACKGROUND

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Plaintiff filed his complaint against the Commissioner of Social Security ("Defendant") on

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June 2, 2011.1 (Doc. 1.) Plaintiff, proceeding in this action in forma pauperis and without counsel,

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is seeking reversal of the agency decision denying his application for social security benefits. (See

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The parties have consented to the jurisdiction of the Magistrate Judge for all purposes. (Docs. 7,8.)

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Doc. 1.) Pursuant to the scheduling order issued on June 3, 2011, Defendant served the Social

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Security Administrative Transcript on Plaintiff on October 5, 2011.

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Following service of the Administrative Transcript and pursuant to the scheduling order,

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Plaintiff was required to serve on Defendant a confidential letter brief within 30 days from the date

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of service of the transcript –, i.e., on or before November 7, 2011.2 In response to Plaintiff's

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confidential letter brief, Defendant was to serve on Plaintiff a confidential letter brief on or before

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December 15, 2011. The parties were to file a joint motion for remand within 15 days after

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Defendant served a confidential letter brief if the parties agreed to a remand. If the parties did not

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agree to a remand, Plaintiff was to file his opening brief with the Court within 30 days after

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Defendant served the confidential letter brief. Accordingly, the last day for Plaintiff to file an

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opening brief was January 17, 2012. The Plaintiff did not file an opening brief.

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On February 15, 2012, the Court issued an order to show cause why Plaintiff's complaint

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should not be dismissed for failure to comply with the Court's scheduling order. (Doc. 10.)

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Alternatively, Plaintiff was to file an opening brief on or before February 24, 2012. (Doc. 10.)

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Defendant was ordered to file a status report on or before February 21, 2012, informing the Court

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whether the confidential letter briefs were served and the dates on which service was accomplished.

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(Doc. 10.)

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On February 21, 2012, Defendant filed a status report indicating that Plaintiff had failed to

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serve a confidential brief, and thus Defendant had not served Plaintiff with a responsive confidential

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letter brief. (Doc. 11.) Since February 24, 2012, through the date of this order, Plaintiff has neither

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responded to the order to show cause nor filed an opening brief.

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III.

DISCUSSION

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Local Rule 110 provides that "[f]ailure of counsel or of a party to comply with these Rules

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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, where

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All computation of dates incorporate Federal Rule of Civil Procedure 6(d) and 5(b)(2)(C).

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

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may dismiss an action, with prejudice, based on a party's failure to prosecute an action, failure to

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obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52,

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53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d

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

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

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comply with local rule requiring pro se plaintiff to keep court apprised of address); Malone v. U.S.

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Postal Serv., 833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to 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. Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir.

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2002); see also Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24; Malone, 833 F.2d at

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130; Ferdik, 963 F.2d at 1260-61; Ghazali, 46 F.3d at 53. "These factors are not a series of

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conditions precedent before the judge can do anything, but a way for a district judge to think about

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what to do." In re Phenylpropanolamine (PPA) Prods. Liab. Litig. ("In re PPA"), 460 F.3d 1217,

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1226 (9th Cir. 2006) (citation omitted).

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Here, the Court finds that dismissal of Plaintiff's complaint is appropriate. In considering the

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first factor, "[t]he public's interest in expeditious resolution of litigation always favors dismissal."

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Pagtalunan, 291 F.3d at 642 (citation omitted). Given Plaintiff's failure to serve a confidential letter

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brief, failure to file an opening brief, and failure to respond to the Court's order to show cause, the

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first factor weighs in favor of dismissing the action.

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The second factor, the court's need to manage its docket, also weighs in favor of dismissal.

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"The court cannot manage its docket if it maintains cases in which a plaintiff fails to litigate his case.

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The court's limited resources must be spent on cases in which the litigants are actually proceeding."
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Lopez v. Wash. Mut. Bank, F.A., No. 1:09-cv-1838-AWI-JLT, 2010 WL 2629039, at *1 (E.D. Cal.

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Jun. 25, 2010).

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The third factor – the risk of prejudice to the defendant – also favors dismissal because a

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presumption of injury arises from the occurrence of unreasonable delay in prosecuting an action.

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Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976) ("This court has consistently held that the

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failure to prosecute diligently is sufficient by itself to justify a dismissal, even in the absence of a

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showing of actual prejudice to the defendant from the failure."). Plaintiff has failed to offer any

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explanation for the delay in proceeding to prosecute this case. Under these circumstances, the Court

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finds that Plaintiff's delay is unreasonable, and a rebuttable presumption of injury to Defendant has

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arisen. See id.

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The fourth factor of public policy favoring disposition on the merits normally weighs against

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dismissal. Id. at 643. "At the same time, a case that is stalled or unreasonably delayed by a party's

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failure to comply with deadlines . . . cannot move forward toward resolution on the merits. Thus, [the

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Ninth Circuit has] also recognized that this factor 'lends little support' to a party whose responsibility

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it is to move a case toward disposition on the merits but whose conduct impedes progress in that

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direction." In re PPA, 460 F.3d at 1228 (citation omitted). As such, this factor has little weight in

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a case such as this where Plaintiff essentially appears to be unable or unwilling to proceed with the

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action. See id.; Lopez, 2010 WL 2629039, at *2.

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Concerning the fifth factor, the availability of lesser sanctions, "[t]he district court abuses its

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discretion if it imposes a sanction of dismissal without first considering the impact of the sanction

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and the adequacy of less drastic sanctions." In re PPA, 460 F.3d at 1228. The court must consider

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the "feasibility of less drastic sanctions and explain why alternative sanctions would be inadequate,"

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whether there were "alternative methods of sanctioning or curing the malfeasance before ordering

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dismissal," and whether "the court warn[ed] the plaintiff of the possibility of dismissal before

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actually ordering dismissal." Id. at 1229 (citations omitted). Here, Plaintiff was expressly warned

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that dismissal would result from his noncompliance with the Court's order. The Court's February

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15, 2012, order to show cause why dismissal should not be ordered explicitly indicated that dismissal

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of the complaint was imminent. Moreover, the Court provided Plaintiff with additional time to file
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an opening brief as an alternative method of satisfying the order to show cause. Plaintiff neither

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responded to the order to show cause nor filed an opening brief.

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Because Plaintiff is proceeding in forma pauperis, monetary sanctions are not a viable

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alternative. Given that Plaintiff could not be motivated to respond to the order to show cause or file

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an opening brief, the Court is left with no alternative method of securing Plaintiff's compliance and

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advancing the case. This matter cannot languish on the docket in the face of Plaintiff's unwillingness

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to proceed with a case that is his responsibility to prosecute.

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IV.

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CONCLUSION AND ORDER

For the reasons set forth above, IT IS HEREBY ORDERED that:

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Plaintiff's complaint is DISMISSED; and

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This matter is to be administratively closed.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 19, 2012

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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