Benson v. Commissioner of Social Security
Filing
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FINDINGS and RECOMMENDATIONS recommending that this action be DISMISSED for Plaintiff's failure to comply with a court order; re 1 Social Security Complaint filed by Gerald A. Benson ; referred to Judge O'Neill, signed by Magistrate Judge Gary S. Austin on 09/30/2011. Objections to F&R due by 11/3/2011(Martin-Gill, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERALD BENSON,
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Plaintiff,
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COMMISSIONER OF SOCIAL
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SECURITY,
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Defendant.
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1:11-cv-1321 GSA LJO
FINDINGS AND RECOMMENDATION
REGARDING PLAINTIFF’S FAILURE TO
FOLLOW A COURT ORDER
(Doc. No. 6)
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On August 11, 2011, Plaintiff, Gerald Bensen, filed the instant action. Plaintiff appears to be
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challenging a denial of his application for social security benefits. Following a preliminary review of
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the complaint, on August 22, 2011, the undersigned issued an order dismissing the complaint
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because it failed to state a claim. (Doc. 6). However, Plaintiff was granted leave to file an amended
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complaint and he was advised that any amended complaint must be filed no later than September
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23, 2011. To date, no amended complaint has been filed.
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DISCUSSION
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Local Rule 11-110 provides that “a 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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U .S. D istrict C ourt
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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 Ain the exercise of that power, they may impose sanctions including, where
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appropriate . . . dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir.
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1986). A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an
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action, failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v.
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Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v.
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Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order
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requiring amendment of complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988)
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(dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprized of
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address); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to
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comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for
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lack of prosecution and failure to comply with local rules). In determining whether to dismiss an
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action for lack of prosecution, failure to obey a court order, or failure to comply with local rules, the
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court must consider several factors: (1) the public’s interest in expeditious resolution of litigation;
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(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public
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policy favoring disposition of cases on their merits; and (5) the availability of less drastic
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alternatives. Ghazali, 46 F.3d at 53; Ferdik, 963 F.2d at 1260-61; Malone, 833 F.2d at 130;
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Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
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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 because this
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case has been pending in this Court since August 11, 2011, and it does not appear that Plaintiff can
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cure the deficiencies in the complaint. The third factor, risk of prejudice to defendants, also weighs
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in favor of dismissal because a presumption of injury arises from any unreasonable delay in
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prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor,
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public policy favoring disposition of cases on their merits, is greatly outweighed by the factors in
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favor of dismissal. Finally, a court’s warning to a party that his failure to obey the court’s order will
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result in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at
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1262; Malone, 833 at 132-33; Henderson, 779 F.2d at 1424. The Court’s order to file an amended
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complaint was clear that dismissal would result from non-compliance with the Court's order. (Doc. 6
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at pg. 6).
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED for
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Plaintiff's failure to comply with a court order.
This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,
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United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B).
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Within thirty (30) days after being served with a copy, Plaintiff may file written objections with the
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court and serve a copy on all parties. Such a document should be captioned “Objections to
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Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate
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Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Plaintiff is advised that failure to file
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objections within the specified time may waive the right to appeal the District Court’s order.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
cf0di0
September 30, 2011
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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