Gray v. Commissioner of Social Security

Filing 7

ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 9/28/2018 RECOMMENDING that the action be dismissed pursuant to FRCP 41(b), The Clerk of Court be directed to vacate all dates and close this case.REASSIGNING CASE to District Judge John A. Mendez. New Case Number: 2:18-CV-71 JAM KJN PS; Referred to Judge John A. Mendez; Objections within 14 days after being served with these F & R's. (Reader, L)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

GEORGE ELLIS GRAY,

12
13
14
15
16

No. 2:18-cv-00071-KJN PS

Plaintiff,
v.

ORDER AND

COMMISSIONER OF SOCIAL
SECURITY,

FINDINGS AND RECOMMENDATIONS

Defendant.

17
18

Plaintiff, proceeding without counsel, initially commenced this social security action on

19

January 12, 2018, and requested leave to proceed in forma pauperis. (ECF Nos. 1, 2.) The court

20

granted plaintiff’s request and ordered him to “submit to the United States Marshal an original

21

and five copies of the completed summons, five copies of the complaint, five copies of the

22

scheduling order, and a completed USM-285 form, and [to] file a statement with the court that

23

such documents have been submitted to the United States Marshal” by February 2, 2018. (ECF

24

No. 3 at 2.) Plaintiff failed to provide the court with a statement that he provided the necessary

25

documents to the United States Marshal.

26

On August 30, 2018, this court ordered plaintiff to show cause in writing why this action

27

should not be dismissed based upon his failure to prosecute this case, no later than September 14,

28

2018. (ECF No. 6.) Plaintiff was also ordered to submit to the United States Marshal an original
1

1

and five copies of the completed summons, five copies of the complaint, five copies of the

2

scheduling order, and a completed USM-285 form, and to file a statement with the court that such

3

documents have been submitted to the United States Marshal, no later than September 14, 2018.

4

(Id.) Plaintiff was specifically cautioned that failure to timely respond to the order to show cause

5

and to timely provide the Unites States Marshal with the necessary documents may result in

6

dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b). (Id.)

7

Although the new deadline has now passed, plaintiff has again failed to provide the

8

necessary documents to the United States Marshal and also failed to respond to the court’s order

9

to show cause. At this juncture, the court concludes that dismissal is appropriate.

10

Eastern District Local Rule 110 provides that “[f]ailure of counsel or of a party to comply

11

with these Rules or with any order of the Court may be grounds for imposition by the Court of

12

any and all sanctions authorized by statute or Rule or within the inherent power of the Court.”

13

Moreover, Eastern District Local Rule 183(a) provides, in part:

14
15
16
17

Any individual representing himself or herself without an attorney is
bound by the Federal Rules of Civil or Criminal Procedure, these
Rules, and all other applicable law. All obligations placed on
“counsel” by these Rules apply to individuals appearing in propria
persona. Failure to comply therewith may be ground for dismissal,
judgment by default, or any other sanction appropriate under these
Rules.

18

See also King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the

19

same rules of procedure that govern other litigants”) (overruled on other grounds). A district

20

court may impose sanctions, including involuntary dismissal of a plaintiff’s case pursuant to

21

Federal Rule of Civil Procedure 41(b), where that plaintiff fails to prosecute his or her case or

22

fails to comply with the court’s orders, the Federal Rules of Civil Procedure, or the court’s local

23

rules. See Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (recognizing that a court “may act

24

sua sponte to dismiss a suit for failure to prosecute”); Hells Canyon Preservation Council v. U.S.

25

Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (stating that courts may dismiss an action

26

pursuant to Federal Rule of Civil Procedure 41(b) sua sponte for a plaintiff’s failure to prosecute

27

or comply with the rules of civil procedure or the court’s orders); Ghazali v. Moran, 46 F.3d 52,

28

53 (9th Cir. 1995) (per curiam) (“Failure to follow a district court’s local rules is a proper ground
2

1

for dismissal”); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992) (“Pursuant to Federal

2

Rule of Civil Procedure 41(b), the district court may dismiss an action for failure to comply with

3

any order of the court”); Thompson v. Housing Auth. of City of L.A., 782 F.2d 829, 831 (9th Cir.

4

1986) (per curiam) (stating that district courts have inherent power to control their dockets and

5

may impose sanctions including dismissal or default).

6

A court must weigh five factors in determining whether to dismiss a case for failure to

7

prosecute, failure to comply with a court order, or failure to comply with a district court’s local

8

rules. See, e.g., Ferdik, 963 F.2d at 1260. Specifically, the court must consider:

9
10
11

(1) the public’s interest in expeditious resolution of litigation; (2) the
court’s need to manage its docket; (3) the risk of prejudice to the
defendants; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic alternatives.

12

Id. at 1260-61; accord Pagtalunan v. Galaza, 291 F.3d 639, 642-43 (9th Cir. 2002); Ghazali, 46

13

F.3d at 53. The Ninth Circuit Court of Appeals has stated that “[t]hese factors are not a series of

14

conditions precedent before the judge can do anything, but a way for a district judge to think

15

about what to do.” In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226

16

(9th Cir. 2006).

17

Here, the first two Ferdik factors support dismissal. Plaintiff failed to comply with the

18

court’s orders, and failed to take the steps necessary to prosecute and move his case forward. The

19

third Ferdik factor, prejudice to the defendant, also favors dismissal. At the very least, the

20

Commissioner has been named in a civil action and plaintiff’s actions have delayed progress

21

towards resolution of the matter.

22

The fifth Ferdik factor, availability of less drastic alternatives, also favors dismissal.

23

Before recommending the harsh sanction of dismissal, the court, especially in light of plaintiff’s

24

pro se status, first issued an order to show cause, providing plaintiff with an opportunity to be

25

heard, and also granted plaintiff an extension to provide the Unites States Marshal with the

26

necessary documents. However, plaintiff entirely failed to respond to the court’s order, and did

27

not even request a further extension of time to comply. As such, the court has little confidence

28

that plaintiff would comply with an order to pay monetary sanctions. Furthermore, based on the
3

1

nature of this action and the limited record, the court is unable to frame any other meaningful, less

2

drastic sanctions, such as issue or evidentiary sanctions.

3

Finally, although the court recognizes the importance of the fourth Ferdik factor, which

4

addresses the public policy favoring disposition of cases on the merits, that public policy is

5

outweighed by the other Ferdik factors. If anything, a disposition on the merits has been hindered

6

by plaintiff’s own failure to comply with the court’s orders and failure to prosecute the case.

7

In sum, after a careful evaluation of all the Ferdik factors, the court finds that plaintiff’s

8

case should be dismissed.

9

CONCLUSION

10

Accordingly, IT IS HEREBY RECOMMENDED that:

11

1. The action be dismissed pursuant to Federal Rule of Civil Procedure 41(b).

12

2. The Clerk of Court be directed to vacate all dates and close this case.

13

In light of the above recommendations, IT IS HEREBY ORDERED that the Clerk of

14

Court shall randomly assign a United States District Judge to this matter.

15

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

16

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen (14)

17

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

18

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

19

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

20

shall be served on all parties and filed with the court within fourteen (14) days after service of the

21

objections. The parties are advised that failure to file objections within the specified time may

22

waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th

23

Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991).

24
25

IT IS SO ORDERED AND RECOMMENDED.
Dated: September 28, 2018

26
27
14/ss.18-71.gray.f&rs 41b

28
4