Marin v. Commissioner of Social Security

Filing 11

FINDINGS and RECOMMENDATIONS that this Action be Dismissed for Failure to State a Claim, signed by Magistrate Judge Stanley A. Boone on 4/15/15. Referred to Judge Nunley. Objections Due Within Thirty Days. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NIGEL MARIN, Plaintiff, 12 13 14 15 Case No. 1:15-cv-00220-TLN-SAB FINDINGS AND RECOMMENDATIONS THAT THIS ACTION BE DISMISSED FOR FAILURE TO STATE A CLAIM v. COMMISSIONER OF SOCIAL SECURITY, OBJECTIONS DUE WITHIN THIRTY (30) DAYS Defendants. 16 17 On February 9, 2015, Plaintiff Nigel Marin (“Plaintiff”) filed the complaint in this action. 18 (ECF No. 1.) On March 12, 2015, the Court issued an order dismissing the claims raised in the 19 complaint, with leave to amend, for failure to state a claim. (ECF No. 8.) 20 The Court’s March 12, 2015 order provided Plaintiff with thirty (30) days to file an 21 amended complaint. To date, no amended complaint has been filed. Plaintiff was expressly 22 warned that failure to file a timely amended complaint would result in a recommendation that 23 this action be dismissed. 24 I. 25 DISCUSSION 26 Local Rule 110 provides that “[f]ailure of counsel or of a party to comply with these 27 Rules or with any order of the Court may be grounds for imposition by the Court of any and all 28 sanctions . . . within the inherent power of the Court.” The Court has the inherent power to 1 1 control its docket and may, in the exercise of that power, impose sanctions where appropriate, 2 including dismissal of the action. Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 3 2000). 4 A court may dismiss an action, with prejudice, based on a party’s failure to prosecute an 5 action, failure to obey a court order, or failure to comply with local rules. See, e.g. Ghazali v. 6 Moran, 46 F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik 7 v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an 8 order to file an amended complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) 9 (dismissal for failure to comply with local rule requiring pro se plaintiffs to keep court apprised 10 of address); Malone v. United States Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987) (dismissal 11 for failure to comply with court order); Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 12 1986) (dismissal for lack of prosecution and failure to comply with local rules). 13 In determining whether to dismiss an action for failure to comply with a pretrial order, 14 the Court must weigh “(1) the public’s interest in expeditious resolution of litigation; (2) the 15 court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 16 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 17 sanctions.” In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 18 (9th Cir. 2006) (internal quotations and citations omitted). These factors guide a court in 19 deciding what to do, and are not conditions that must be met in order for a court to take action. 20 Id. (citation omitted). 21 In this instance the public’s interest in expeditious resolution of the litigation and the 22 Court’s need to manage its docket weigh in favor of dismissal. Plaintiff was ordered to file an 23 amended complaint within thirty days of March 12, 2015. Plaintiff has neither filed an amended 24 complaint nor otherwise responded to the Court’s order. Plaintiff’s failure to comply with the 25 orders of the Court hinders the Court’s ability to move this action towards disposition, and 26 indicates that Plaintiff does not intend to diligently litigate this action. 27 Since it appears that Plaintiff does not intend to litigate this action diligently, there arises 28 a rebuttable presumption of prejudice to the defendants in this action. In re Eisen, 31 F.3d 1447, 2 1 1452-53 (9th Cir. 1994). This risk of prejudice may be rebutted if Plaintiff offers an excuse for 2 the delay. In re Eisen, 31 F.3d at 1453. The risk of prejudice to the defendants also weighs in 3 favor of dismissal. 4 The public policy in favor of deciding cases on their merits is greatly outweighed by the 5 factors in favor of dismissal. It is Plaintiff’s responsibility to move this action forward. This 6 action can proceed no further without Plaintiff’s cooperation and compliance with the order at 7 issue, and the action cannot simply remain idle on the Court’s docket, unprosecuted. In this 8 instance, the fourth factor does not outweigh Plaintiff’s failure to comply with the Court’s orders. 9 Finally, a court’s warning to a party that their failure to obey the court’s order will result 10 in dismissal satisfies the “consideration of alternatives” requirement. Ferdik, 963 F.2d at 1262; 11 Malone, 833 F.2d at 132-33; Henderson, 779 F.2d at 1424. Plaintiff was expressly warned that 12 failure to file an amended complaint would result in a recommendation that this action be 13 dismissed. 14 II. 15 CONCLUSION AND RECOMMENDATION 16 For the reasons stated in the March 12, 2015 order, the Court finds that Plaintiff’s 17 complaint fails to state any cognizable claims. The Court further finds that this action should be 18 dismissed as a result of Plaintiff’s failure to prosecute. 19 Accordingly, it is HEREBY RECOMMENDED that this action be DISMISSED with 20 prejudice for Plaintiff’s failure to state a claim and failure to prosecute. 21 These findings and recommendations are submitted to the district judge assigned to this 22 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (30) 23 days of service of this recommendation, any party may file written objections to these findings 24 and recommendations with the Court and serve a copy on all parties. Such a document should be 25 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district 26 judge will review the magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 27 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 28 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 3 1 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 2 3 IT IS SO ORDERED. 4 Dated: April 15, 2015 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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