(SS) Riggs v. Commissioner of Social Security

Filing 22

ORDER of Dismissal Without Prejudice, signed by Magistrate Judge Helena M. Barch-Kuchta on 11/18/2022. CASE CLOSED. (Rivera, O)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES TOMPSON RIGGS,

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Case No. 1:20-cv-00940-HBK

Plaintiff,

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ORDER OF DISMISSAL WITHOUT
PREJUDICE1

v.

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COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.

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This matter comes before the Court upon review of Plaintiff’s Response to the Court’s

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Order to Show Cause filed August 31, 2022. (Doc. No. 21). As more fully set forth below, the

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Court dismisses this case without prejudice.
I. FACTS AND BACKGROUND

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James Tompson Riggs initiated this action by filing a pro se social security complaint on

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July 7, 2020. (Doc. No. 1). Plaintiff accompanied his complaint with a motion to proceed in

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forma pauperis. (Doc. No. 2). The Court granted Plaintiff’s motion to proceed in forma

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pauperis and a scheduling order issued on July 9, 2020. (Doc. Nos. 3, 5). On January 14, 2021,

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the Court entered an order directing Plaintiff to show cause why the action should not be

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dismissed due to Plaintiff’s failure to provide the necessary forms for service of process on the

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The parties consented to the jurisdiction of the assigned United States magistrate judge. (Doc. No. 6).

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Commissioner and/or to provide proof of service on the Commissioner. (Doc. No. 7). Plaintiff

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filed a response to the Show Cause Order, explaining his confusion and requesting a limited

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extension of time to serve the Commissioner. (See generally Doc. No. 8). The Court granted

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Plaintiff a limited extension of time and Plaintiff timely completed the forms for service on the

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Commissioner. (Doc. Nos. 9-11). This matter thereafter was stayed pursuant to General Order

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615. (Doc. No. 12).

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On March 31, 2022, the Court lifted the stay, directed the Commissioner to file the

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certified administrative record (“CAR”) and issued an amended scheduling order. (Doc. No. 15).

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On April 25, 2022, the Commissioner lodged the CAR, triggering certain deadlines, including a

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45-day deadline by which Plaintiff was to file a motion for summary judgment. (Doc. No. 16).

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Plaintiff did not timely do so, or otherwise respond. (See docket).

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On August 9, 2022, the Court issued a second order directing Plaintiff to show cause

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within fourteen days why the action should not be dismissed due to his failure to prosecute. (Doc.

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No. 18). The Court further directed Plaintiff that he must accompany his response to the show

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cause order with an opening brief or motion for summary judgment if he wishes to prosecute this

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action. (Id. at 2). On August 31, 2022, Plaintiff filed a response to the Show Cause Order, but

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did not accompany his response with an opening brief or a motion for summary judgment. (Doc.

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No. 21). In his one-page response, Plaintiff states he has “developed additional problems with

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[his] health” since filing for social security benefits. (Id. at 1). More specifically, Plaintiff states

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he “had a series of strokes that were TIA’s (transient ischemic attack)” and “was hospitalized for

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3 days” in November 2019. (Id.). Plaintiff states he sends “this letter” “so [these additional

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health problems] can be added to [his] claim to receive disability benefits.” (Id.).

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II. APPLICABLE LAW
Federal Rule of Civil Procedure 41(b) permits the court to involuntarily dismiss an action

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when a litigant fails to prosecute an action or fails to comply with other Rules or with a court

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order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 884, 889

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(9th Cir. 2019) (citations omitted). Similarly, the Local Rules, corresponding with Federal Rule

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of Civil Procedure 11, provide, “[f]ailure of ... a party to comply with … any order of the Court
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may be grounds for the imposition by the Court of any and all sanctions … within the inherent

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power of the Court.” E.D. Cal. L.R. 110. “District courts have inherent power to control their

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dockets” and, in exercising that power, may impose sanctions, including dismissal of an action.

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Thompson v. Housing Auth., City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986). A court may

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dismiss an action based on a party’s failure to prosecute an action, obey a court order, or comply

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with local rules. See, e.g., Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992) (dismissal

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for failure to comply with a court order to amend a complaint); Malone v. U.S. Postal Service,

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833 F.2d 128, 130-31 (9th Cir. 1987) (dismissal for failure to comply with a court order);

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Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for failure to prosecute and

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to comply with local rules).
In determining whether to dismiss an action, the Court must consider several factors:

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

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docket; (3) the risk of prejudice to the defendant; (4) the public policy favoring disposition of

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cases on their merits; and (5) the availability of less drastic sanctions. Henderson, 779 F.2d at

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1423; Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988).

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III. ANALYSIS

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The Court considers each of the above-stated factors and concludes dismissal is warranted

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in this case. The expeditious resolution of litigation is deemed to be in the public interest,

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satisfying the first factor. Yourish v. California Amplifier, 191 F.3d 983, 990-91 (9th Cir. 1999).

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Turning to the second factor, the Court’s need to efficiently manage its docket cannot be

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overstated. This Court has “one of the heaviest caseloads in the nation,” and due to unfilled

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judicial vacancies, which is further exacerbated by the Covid-19 pandemic, operates under a

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declared judicial emergency. See Amended Standing Order in Light of Ongoing Judicial

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Emergency in the Eastern District of California. The Court finds Plaintiff’s response to the

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Court’s Order to Show Cause provides no reason for his inordinate delay in moving this case

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forward. Although Plaintiff explains he has developed new medical conditions that required a

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short three-day hospitalization, his hospitalization occurred years before he was required to

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submit an opening brief in this case. Further, Plaintiff’s “new” disabilities manifested themselves
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in November 2019, after the Commissioner issued a decision denying Plaintiff’s disability

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benefits. (See Doc. No. 16-1 at 5). Thus, the Court finds that both the first and second favors

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weigh in favor of dismissal.

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Delays have the inevitable and inherent risk that evidence will become stale or witnesses’

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memories will fade or be unavailable and can prejudice a defendant, thereby satisfying the third

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factor. See Sibron v. New York, 392 U.S. 40, 57 (1968). Here, the risk of prejudice to defendant

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also weighs in favor of dismissal since a presumption of injury arises from the occurrence of

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unreasonable delay in prosecuting an action. Anderson v. Air W., 542 F.2d 522, 524 (9th Cir.

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1976). Plaintiff’s inaction amounts to an unreasonable delay in prosecuting this action, weighing

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in favor of dismissal for a risk of prejudice to defendants.
As to the fourth factor, a preference to rule on the merits usually weighs against dismissal

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because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643

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(9th Cir. 2002). Plaintiff has not presented any matter on the merits to consider. Plaintiff did not

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move for summary judgment or otherwise indicate why he believes the Commissioner erred in

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denying his application for disability benefits thus necessitating the order to show cause. Thus,

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“this factor lends little support to a party whose responsibility it is to move a case toward

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disposition on the merits but whose conduct impedes progress in that direction,” which is the case

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here. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th

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Cir. 2006) (citation omitted). Further, a cursory review of the certified administrative record

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shows the appeal’s council reviewed the administrative law judge’s February 21, 2019 opinion

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denying Plaintiff relief because he attempted to raise new evidence from Yang Cao, M.D dated

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March 22, 2019 and the time period considered ended February 21, 2019. (See Doc. No. 16-1 at

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5-6). Similarly, Plaintiff’s response to the order to show cause includes incidents which occurred

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even later, in November 2019. (See Doc. No. 21). In other words, to the extent Plaintiff believes

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he has new disabilities stemming from mini strokes occurring in November 2019, on which to

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base a new claim for disability benefits, as raised in his Response to the Show Cause Order, these

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issues occurred after the Commissioner denied his prior disability claim and were not considered

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by the Administrative law Judge. The Social Security Administration previously advised Plaintiff
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that any evidence dated later than the operative disability period requires Plaintiff to file a new

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claim for disability benefits. (Doc. No. 16-1 at 6). Finally, the instant dismissal is a dismissal

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without prejudice, which is a lesser sanction than a dismissal with prejudice, thereby addressing

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the fifth factor.

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Considering these factors and those set forth supra, as well as binding case law, the Court

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finds dismissal, without prejudice, under Fed. R. Civ. P. 41(b) and Local Rule 110 is appropriate.

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See J. v. Commissioner of Soc. Sec. Admin., No. 3:17-cv-02030-MK, 2018 WL 8577588 (D.

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Oregon Dec. 12, 2018)(recommending dismissal of social security action for lack of prosecution).

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Accordingly, it is ORDERED:

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1. This action is dismissed without prejudice.

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2. The Clerk of Court shall terminate any pending motions, enter judgment accordingly,

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and close this case.

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Dated:

November 18, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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