Thompson v. Colvin

Filing 11

ORDER signed by Magistrate Judge Craig M. Kellison on 1/20/16 ORDERING that this Action is DISMISSED without prejudice for lack of prosecution and failure to comply with Court Rules and Orders; and The Clerk is directed to enter judgment and close this file. CASE CLOSED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWN NOEL THOMPSON,

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No. 2:15-CV-0369-CMK

Plaintiff,
vs.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under

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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

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Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

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judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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On August 28, 2015, the court ordered plaintiff to show cause within 30 days why

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this action should not be dismissed for lack of prosecution. Plaintiff was warned that failure to

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comply could result in dismissal of the action. To date, plaintiff has neither prosecuted this

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action by seeking voluntary remand or filing a dispositive motion, nor responded to the court’s

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order to show cause.
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The court must weigh five factors before imposing the harsh sanction of

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dismissal. See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v.

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U.S. Postal Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's

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

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

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their merits; and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran,

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46 F.3d 52, 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an

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appropriate sanction is considered a less drastic alternative sufficient to satisfy the last factor.

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See Malone, 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is

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appropriate where there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421,

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1423 (9th Cir. 1986).

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In this case, the court finds that these factors weigh in favor of dismissal.

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Plaintiff’s failure to prosecute this action thwarts the public’s interest in an expeditious resolution

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on the merits, as well as the court’s interest in managing its docket.

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Accordingly, IT IS HEREBY ORDERED that:

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1.

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This action is dismissed without prejudice for lack of prosecution and

failure to comply with court rules and orders; and
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The Clerk of the Court is directed to enter judgment and close this file.

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DATED: January 20, 2016
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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