Gilbert v. Commissioner of Social Security

Filing 25

ORDER to SHOW CAUSE, signed by Magistrate Judge Gary S. Austin on 12/1/16: 20-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SPENCER ALAN GILBERT,

15-cv-1757 GSA

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Plaintiff,

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v.
ORDER TO SHOW CAUSE
CAROLYN COLVIN, Commissioner of
Cocial Cecurity,
Defendant.

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On November 19, 2015, pro se Plaintiff Spencer Gilbert (“Plaintiff”) filed a complaint

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requesting a review of the Commissioner’s denial of disability benefits. (Doc. 1). Plaintiff filed

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an amended complaint on January 7, 2016, which was served on the Defendant on April 11, 2016.

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(Doc. 5). On January 12, 2016, the Court issued a scheduling order advising Plaintiff that he was

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required to serve a confidential letter brief on the Defendant thirty days after the filing of the

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administrative record. (Doc. 8, pg. 2). Defendant served the administrative record on August 9,

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2016 (Doc.14), requiring that the confidential letter brief be served on the Defendant no later than
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September 8, 2016.
On August 12, 2016, Plaintiff filed a “Motion for a Status Update.” (Doc. 15). The Court
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held a telephonic status conference with the Plaintiff on September 14, 2016. (Doc. 20). At the

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conference, Plaintiff was given until November 3, 2016, to serve Defendant with the confidential

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letter brief.

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On October 28, 2016, Plaintiff called chambers indicating that he had not served the letter
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brief and requested Defendant’s address. On October 31, 2016, the Court issued a minute order

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listing Defendant’s address. Plaintiff was also advised that if he wanted an extension of time to

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serve the confidential letter brief, he needed to file a motion in writing no later than November

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10, 2016. To date, Plaintiff has not filed a request for an extension of time. On November 18,

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2016, Defendant filed a status report indicating that the confidential letter brief was not received
and that there had been no communication with the Plaintiff since the September 14, 2016 status

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conference. (Doc. 23).
Given the above, it appears that Plaintiff has violated the order of this court. Accordingly,

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the Court orders that Plaintiff show cause why monetary sanctions should not be imposed, or why

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this case should not be dismissed for his failure to comply with this Court’s orders, and for his

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failure to prosecute this case.

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Rule 110 of this Court’s Local Rules provides that the “failure of counsel or of a party to
comply … with any order of the Court may be grounds for imposition by the Court of any and all

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sanctions … within the inherent power of the Court.” This Court has the inherent power to

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manage its docket. 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

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a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54

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(9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,

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

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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 plaintiffs to keep court apprised of address); Henderson v.

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Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to

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comply with local rules).

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In determining whether to dismiss an action for lack of prosecution, failure to obey a
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court order, or failure to comply with local rules, the court must consider several factors: (1) the

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public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket;

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(3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on

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their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik,

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963 F.2d at 1260-61; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24.
Given the above, Plaintiff ORDERED to file a written response to this Order to Show

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Cause WITHIN twenty (20) days of the date of this Order, explaining why he has not served
Defendant with the confidential letter brief. Plaintiff is reminded that the confidential letter

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brief shall not be filed on the docket or served on the Court, but mailed directly to the

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Defendant.

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Failure to respond to this Order to Show Cause within the time specified may result
in dismissal of this action.

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IT IS SO ORDERED.
Dated:

December 1, 2016

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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