Valentine v Social Security Administration

Filing 6

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 3/9/2017 ORDERING 3 that the hearing on Defendant's Motion to Dismiss is VACATED; and the Motion to Dismiss is DENIED without prejudice as having been RENDERED MOOT; RECOMMENDING that the Complaint be dismissed without prejudice; and this action be closed; Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these F & R's. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DESHAYLA VALENTINE,

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No. 2:17-cv-0051 KJM DB PS

Plaintiff,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

SOCIAL SECURITY
ADMINISTRATION,
Defendant.

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Plaintiff is proceeding in this action pro se. This matter was, therefore, referred to the
undersigned in accordance with Local Rule 302(c)(21) and 28 U.S.C. § 636(b)(1).

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On January 17, 2017, defendant filed a motion to dismiss and noticed that motion for

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hearing before the undersigned on February 17, 2017. (ECF No. 3.) Pursuant to Local Rule

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230(c) plaintiff was to file an opposition or statement of non-opposition to defendant’s motion

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“not less than fourteen (14) days preceding the noticed . . . hearing date.” Plaintiff, however,

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failed to file a timely opposition or statement of non-opposition.

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Accordingly, on February 9, 2017, the undersigned issued an order to show cause in

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writing within fourteen days as to why this action should not be dismissed for lack of prosecution.

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(ECF No. 4.) The order to show cause also ordered plaintiff to file a statement of opposition or

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non-opposition to defendant’s motion on or before March 3, 2017. Plaintiff was cautioned that
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failure to file a written response to that order could result in the undersigned recommending that

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this matter be dismissed. (Id. at 2.) Nonetheless, the time provided plaintiff has expired and

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plaintiff has not responded to the order to show cause in any way.

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ANALYSIS
The factors to be weighed in determining whether to dismiss a case for lack of prosecution

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are as follows: (1) the public interest in expeditious resolution of litigation; (2) the court’s need

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

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disposition on the merits; and (5) the availability of less drastic sanctions. Hernandez v. City of

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El Monte, 138 F.3d 393, 398 (9th Cir. 1998); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir.

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1992); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988). Dismissal is a harsh penalty that

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should be imposed only in extreme circumstances. Hernandez, 138 F.3d at 398; Ferdik, 963 F.2d

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at 1260.

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Failure of a party to comply with the any order of the court “may be grounds for

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imposition by the Court of any and all sanctions authorized by statute or Rule or within the

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inherent power of the Court.” Local Rule 110. Any individual representing himself or herself

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without an attorney is nonetheless bound by the Federal Rules of Civil Procedure, the Local

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Rules, and all applicable law. Local Rule 183(a). A party’s failure to comply with applicable

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rules and law may be grounds for dismissal or any other sanction appropriate under the Local

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Rules. Id.

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Here, plaintiff failed to file a statement of opposition or non-opposition to defendant’s

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motion to dismiss. The undersigned issued an order to show cause that provided plaintiff with an

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opportunity to show good cause for plaintiff’s conduct, along with a further opportunity to oppose

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defendant’s motion. Plaintiff failed to respond to that order in any way. The order to show cause

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specifically warned plaintiff that the failure to file a written response to that order could result in a

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recommendation that this matter be dismissed.

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Plaintiff’s lack of prosecution of this case renders the imposition of monetary sanctions

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futile. Moreover, the public interest in expeditious resolution of litigation, the court’s need to

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manage its docket, and the risk of prejudice to the defendant all support the imposition of the
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sanction of dismissal. Only the public policy favoring disposition on the merits counsels against

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dismissal. However, plaintiff’s failure to prosecute the action in any way makes disposition on

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the merits an impossibility. The undersigned will therefore recommend that this action be

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dismissed due to plaintiff’s failure to prosecute as well as plaintiff’s failure to comply with the

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court’s orders. See Fed. R. Civ. P. 41(b).

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Accordingly, IT IS HEREBY ORDERED that:

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1) The March 17, 2017 hearing of defendant’s motion is vacated; and

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2) Defendant’s January 17, 2017 motion to dismiss (ECF No. 3) is denied without

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prejudice as having been rendered moot.1

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Also, IT IS HEREBY RECOMMENDED that:

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1) Plaintiff’s November 28, 2016 complaint (ECF No. 1-1) be dismissed without

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prejudice; and

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2) This action be closed.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 9, 2017

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DLB:6
DB\orders\orders.pro se\valentine0051.dlop.f&rs

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In the event the assigned District Judge does not adopt these findings and recommendation,
defendant may re-notice its motion to dismiss for hearing before the undersigned.
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