Lutz v. Commissioner of Social Security

Filing 14

FINDINGS and RECOMMENDATIONS Recommending this Action be Dismissed for Failure to Prosecute, signed by Magistrate Judge Stanley A Boone on 5/9/13. Referred to Judge O'Neill; Objections due within 14 days. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RONALD LEE LUTZ,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

Case No. 1:12-cv-01979-SAB
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THIS ACTION BE
DISMISSED FOR FAILURE TO PROSECUTE
OBJECTIONS DUE WITHIN FOURTEEN DAYS

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Defendant.
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Plaintiff Ronald Lee Lutz is proceeding pro se and in forma pauperis in this action

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challenging the denial of social security benefits. On December 6, 2012, the Court issued an

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order directing Plaintiff to complete and return the USM-285 forms so service of this action could

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be made by the United States Marshal. After Plaintiff did not comply or otherwise respond to the

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court's order, a second order issued on March 26, 2013 directing Plaintiff to complete and return

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the USM 285 forms within thirty days so service could be effected. More than thirty days have

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passed and Plaintiff again has not complied with or otherwise responded to the Court's order.

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The Court has the inherent power to control its docket and may, in the exercise of that

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power, impose sanctions where appropriate, including dismissal of the action. Bautista v. Los

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Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action

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for failure to comply with a pretrial order, the Court must weigh “(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

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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 sanctions.”

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Liability Litigation, 460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and citations

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omitted). These factors guide a court in deciding what to do, and are not conditions that must be

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met in order for a court to take action. Id. (citation omitted).

In re Phenylpropanolamine (PPA) Products

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Based on Plaintiff’s failure to comply with or otherwise respond to the court order, the

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Court is left with no alternative but to dismiss the action for failure to prosecute. Id. Plaintiff

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filed this action on December 5, 2012, and the Court has issued two separate orders directing

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Plaintiff to submit service documents so the action can be served. This action can proceed no

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further without Plaintiff’s cooperation and compliance with the order at issue. The action cannot

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simply remain idle on the Court’s docket, unprosecuted. Id. Accordingly, the Court HEREBY

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RECOMMENDS that this action be dismissed, without prejudice, for failure to prosecute.

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These findings and recommendations are submitted to the district judge assigned to this

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action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within fourteen

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(14) days of service of this recommendation, any party may file written objections to these

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findings and recommendations with the Court and serve a copy on all parties. Such a document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The

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district judge will review the magistrate judge’s findings and recommendations pursuant to 28

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U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified

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time may waive the right to appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
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May 9, 2013

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DEAC_Signature-END:

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_

UNITED STATES MAGISTRATE JUDGE
i1eed4

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