Cardenas v. Commissioner of Social Security

Filing 31

ORDER DISCHARGING Order to Show Cause; ORDER DISMISSING Action Without Prejudice for Failure to Prosecute and for Failure to Comply With Court Order; ORDER DIRECTING Clerk to Close Action, signed by Magistrate Judge Sheila K. Oberto on 2/23/17. CASE CLOSED. (Marrujo, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN MARTIN CARDENAS, Plaintiff, 12 13 14 15 16 17 Case No. 1:15-cv-01939-SKO ORDER DISCHARGING ORDER TO SHOW CAUSE v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ORDER DISMISSING ACTION WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE AND FOR FAILURE TO COMPLY WITH COURT ORDER ORDER DIRECTING CLERK TO CLOSE ACTION _____________________________________/ 18 On December 29, 2015, Plaintiff, proceeding in forma pauperis, filed the present action in 19 this Court. (Doc. 1.) Plaintiff seeks review of the Commissioner’s denial of his application for 20 benefits. (Doc. 1.) On September 6, 2016, the Court entered the parties’ stipulated request to 21 modify the Scheduling Order (Doc. 14) to require Plaintiff to file and serve his opening brief by 22 no later than October 3, 2016 (Doc. 15). 23 On October 3, 2016, the same day as the deadline for filing Plaintiff’s opening brief, see 24 Doc. 17 (Minute Order setting expedited briefing schedule), Plaintiff’s counsel filed a motion to 25 withdraw as attorney of record, stating that she has been unable to contact Plaintiff about his case, 26 making it unreasonably difficult for her to carry out her representation of Plaintiff effectively. 27 (Doc. 16.) On November 23, 2016, the Court found that Plaintiff’s counsel failed to comply with 28 1 California Rule of Professional Conduct 3-700(A)(2) and Eastern District of California Local Rule 2 182(d), and denied counsel’s motion to withdraw without prejudice to refiling and curing the 3 defects identified therein. (Doc. 21.) On December 28, 2016, Plaintiff’s counsel filed her 4 amended motion to withdraw. (Doc. 23.) 5 Plaintiff’s counsel was permitted to withdraw as attorney of record on January 18, 2017, 6 and the Court extended the deadline for Plaintiff to file and serve his opening brief to February 1, 7 2017. (Doc. 28.) That same day, January 18, 2017, Plaintiff was served with an Informational 8 Order for Pro Se Litigants. (Doc. 29.) The Informational Order detailed Plaintiff’s 9 responsibilities as a pro se litigant, including the substantive requirements of an opening brief, and 10 required that the opening brief be filed and served by no later than February 1, 2017. (Doc. 29, p. 11 1.) Plaintiff was further advised of the deadlines for the Commissioner’s responsive brief and for 12 any reply brief. (Doc. 29, p. 3.) These deadlines were also set forth on page 3 of the 13 Informational Order that was served on Plaintiff. (Id.) On February 1, 2017, Plaintiff failed to file 14 and serve his opening brief with the Court and on opposing counsel. (See Docket.) 15 Following Plaintiff’s failure to comply with the Court’s order, on February 2, 2017, the 16 Court issued an order to show cause why the matter should not be dismissed. (Doc. 30.) Plaintiff 17 was ordered to respond by no later than February 17, 2017, or in the alternative, to file his opening 18 brief in accordance with the Court’s order modifying the briefing schedule. (Doc. 30.) 19 Plaintiff has not filed any response to the Court’s order to show cause why the action 20 should not be dismissed, nor has he filed his opening brief. (See Docket.) 21 22 II. DISCUSSION The Local Rules, corresponding with Fed. R. Civ. P. 11, provide: “Failure of counsel or of 23 a party to comply with . . . any order of the Court may be grounds for the imposition by the Court 24 of any and all sanctions . . . within the inherent power of the Court.” See LR 110. 25 “District courts have inherent power to control their dockets,” and in exercising that power, 26 a court may impose sanctions including dismissal of an action. Thompson v. Hous. Auth. of L.A., 27 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an action with prejudice, based on a 28 party’s failure to prosecute an action or failure to obey a court order, or failure to comply with 2 1 local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal for 2 failure to comply with an order requiring amendment of complaint); Malone v. U.S. Postal 3 Service, 833 F.2d 128, 130 (9th Cir. 1987) (dismissal for failure to comply with a court order); 4 Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and 5 to comply with local rules). 6 In determining whether to dismiss an action for failure to obey a court order or failure to 7 comply with the Local Rules, the court must consider several factors, including: “(1) the public’s 8 interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the 9 risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their 10 merits; and (5) the availability of less drastic sanctions.” Henderson, 779 F.2d at 1423-24; see 11 also Ferdik, 963 F.2d at 1260-61; Thomspon, 782 F.2d at 831. 12 In this case, the public’s interest in expeditiously resolving this litigation and the Court’s 13 interest in managing the docket weigh in favor of dismissal. The risk of prejudice to the 14 Defendant Commissioner also weighs in favor of dismissal, since a presumption of injury arises 15 from the occurrence of unreasonable delay in prosecution of an action. See Anderson v. Air West, 16 542 F.2d 522, 524 (9th Cir.1976). No less drastic sanction is available to the Court, as Plaintiff 17 has failed to comply with the Court’s prior orders and is proceeding in forma pauperis. The 18 policy favoring disposition of cases on their merits is outweighed by these other four factors in 19 favor of dismissal. See Hall v. Comm’r of Soc. Sec., No. 1:11-cv-00693-JLT, 2011 WL 3794705 20 at *2 (E.D. Cal. Aug. 25, 2011). 21 In its Order entered February 2, 2017, the Court informed Plaintiff that failure to comply 22 with the Court’s order to show cause may result in dismissal of the action. (Doc. 30.) Thus, 23 Plaintiff had adequate warning that dismissal would result from failure to file his opening brief or 24 “show cause” for why the action should not be dismissed. It is within the Court’s inherent 25 authority to dismiss the action both for failure to prosecute and for failure to comply with the 26 Court’s order. 27 // 28 // 3 1 // 2 III. CONCLUSION AND ORDER 3 Good cause being established therefor, it is HEREBY ORDERED that: 4 1. 5 Plaintiff’s complaint be DISMISSED WITHOUT PREJUDICE for failure to comply with the Court’s order and to prosecute; and 6 2. The Clerk of Court is directed to close this case. 7 8 IT IS SO ORDERED. 9 Dated: 10 February 23, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 .

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