Bargas v. Commissioner of Social Security
Filing
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FINDINGS and RECOMMENDATIONS Regarding Plaintiff's Failure to Follow the Court's Order 3 . Referred to Judge O'Neill; Objections to F&R due within 15 days after being service with these Findings and Recommendations. signed by Magistrate Judge Barbara A. McAuliffe on 11/30/2012. (Herman, H)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOYCE ANN BARGAS,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE COMMISSIONER )
OF SOCIAL SECURITY,
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Defendant.
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1:12-cv-1546 LJO-BAM
FINDINGS AND RECOMMENDATION
REGARDING PLAINTIFF’S FAILURE TO
FOLLOW THE COURT’S ORDER
(Doc. 3)
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Plaintiff Joyce Ann Bargas, appearing pro se and proceeding in forma pauperis, filed the instant
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action on September 20, 2012. In her complaint, Plaintiff appears to be challenging a denial of her
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application for disability benefits under Titles II and/or XVI of the Social Security Act. Following a
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preliminary review of the complaint, on October 9, 2012, the Court issued an order dismissing the
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complaint because it failed to state a claim. (Doc. 3). However, Plaintiff was granted leave to file an
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amended complaint within thirty (30) days. The Court’s order was served by mail on October 10, 2012
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and has not been returned as undeliverable. Over forty-five (45) days have passed, and Plaintiff has not
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complied with the Court’s order.
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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 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 sanctions
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. . . within the inherent power of the Court.” District courts have the inherent power to control their
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dockets and “in the exercise of that power, they may impose sanctions including, where appropriate . .
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. dismissal of a case.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may
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dismiss an action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court
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order, or failure to comply with local rules. See, e.g. Ghazali v. Moran, 46 F.3d 52, 53-54 (9th Cir.
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1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th
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Cir. 1992) (dismissal for failure to comply with an order requiring amendment of complaint); Carey v.
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King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to comply with local rule requiring
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pro se plaintiffs to keep court apprised of address); Malone v. U.S. Postal Service, 833 F.2d 128, 130
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(9th Cir. 1987) (dismissal for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421,
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1424 (9th Cir. 1986) (dismissal for failure to lack of 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 order,
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or failure to comply with local rules, the court must consider several factors: (1) the public’s interest in
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expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice
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to the defendants; (4) the public policy favoring disposition of cases on their merits; and (5) the
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availability of less drastic alternatives. Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24;
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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, as this case has
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been pending with no action and no response from Plaintiff for the last two months. Plaintiff has failed
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to respond to the Court’s order and appears to have abandoned the case. The third factor, risk of
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prejudice to defendants, also weighs in favor of dismissal, since a presumption of injury arises from the
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occurrence of unreasonable delay in prosecuting an action. Anderson v. Air West, 542 F.2d 522, 524 (9th
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Cir. 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, the fifth factor also favors
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dismissal. The Court has advised Plaintiff of the Local Rules and Plaintiff has now had over forty-five
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days to file an amended complaint. The Court finds no suitable alternative to dismissal of this action.
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RECOMMENDATION
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Accordingly, the Court HEREBY RECOMMENDS that this action be dismissed based on
Plaintiff’s failure to obey the Court’s order of October 9, 2012.
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These Findings and Recommendations are submitted to the United States District Judge assigned
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to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fifteen (15) days after being
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served with these Findings and Recommendations, plaintiff may file written objections with the court.
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Such a document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendations.” Plaintiff is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
10c20k
November 30, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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