Wilburn v. Commissioner of Social Security

Filing 11

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 1/16/2019 RECOMMENDING this action be dismissed. Referred to Judge William B. Shubb. Objections to F&R due within 14 days. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KIMBERLY LYNN WILBURN,

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No. 2:18-CV-0994-WBS-DMC

Plaintiff,
v.

FINDINGS AND RECOMMENDATIONS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding pro se, brings this action for judicial review of a final

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decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). On August 22,

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2018, the court granted plaintiff’s motion for leave to proceed in forma pauperis. That order

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required plaintiff to submit to the United States Marshal, within 15 days of the date of service of

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the order, a completed summons and copies of the complaint, and file a statement with the court

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that said documents have been submitted. Plaintiff was warned that failure to comply may

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result in dismissal of this action for lack of prosecution and failure to comply with court rules

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and orders. See Local Rule 110. As of September 18, 2018, plaintiff had not complied and the

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court directed plaintiff to show cause within 30 days why the action should not be dismissed.

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On October 25, 2018, the court extended the deadline to respond to the court’s September 18,

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2018, order to show cause to 30 days from the date of the order. More than 30 days have
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elapsed and plaintiff has neither responded to the court’s order to show cause nor submitted the

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required service documents as originally directed.

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The court must weigh five factors before imposing the harsh sanction of dismissal.

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

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

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expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of

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

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and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

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sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

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

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there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an

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order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992).
Having considered these factors, and in light of plaintiff’s failure to submit the

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documents necessary for service of process as directed, the court finds that dismissal of this

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action is appropriate.

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Based on the foregoing, the undersigned recommends that this action be dismissed,
without prejudice, for lack of prosecution and failure to comply with court rules and orders.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 16, 2019
____________________________________
DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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