Kappes v. Commissioner of Social Security

Filing 7

ORDER signed by Magistrate Judge Deborah Barnes on 9/25/2018 CASE ASSIGNED to District Judge John A. Mendez for all further proceedings. New Case Number: 2:18-CV-0002 JAM DB; RECOMMENDING that Plaintiff's complaint be dismissed without prejudice and this action be closed; Referred to Judge John A. Mendez; 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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GEORGE KAPPES, III,

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Plaintiff,

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No. 2:18-cv-0002 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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On January 23, 2018, the undersigned granted plaintiff’s motion to proceed in forma

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pauperis and ordered plaintiff to submit to the United States Marshal the documents necessary for

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service of process. (ECF No. 3.) Plaintiff was also ordered to file in this court a declaration

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stating the date on which the documents were submitted to the United States Marshal within five

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days after submitting those documents. Despite the considerable passage of time, plaintiff did not

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file those documents and a defendant never appeared this action.
Accordingly, on August 27, 2018, the undersigned issued an order to show cause, ordering

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plaintiff to show cause in writing within 21 days as to why this case should not be dismissed for

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lack of prosecution. (ECF No. 6.) The 21-day period has passed and plaintiff has not responded

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to the court’s order in any manner.

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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 timely declaration stating the date on which service

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documents were submitted to the United States Marshal, possibly because plaintiff did not submit

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such service documents to the United States Marshal. Accordingly, the undersigned issued an

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order to show cause that provided plaintiff with an opportunity to show good cause for plaintiff’s

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conduct. 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 respond to that order could result in the dismissal

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of this action. (ECF No. 6 at 2.)

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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 the Clerk of the Court randomly assign a
District Judge to this action.

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Also, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s January 2, 2018 complaint (ECF No. 1) be dismissed without prejudice; and

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2. This action be closed.

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These findings and recommendations will be 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)(1). Within fourteen (14)

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days after being served with these findings and recommendations, plaintiff may file written

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objections with the court. A document containing objections should be titled “Objections to

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Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file

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objections within the specified time may, under certain circumstances, waive the right to appeal

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

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Dated: September 25, 2018

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DLB:6
DB\orders\orders.soc sec\kappes0002.dlop.f&rs

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