Spagnolo v. Social Security Administration
Filing
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ORDER: (1) ADOPTING THE 48 MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION AND (2) DISMISSING THE ACTION. Signed by District JUDGE DAVID ALAN EZRA on January 11, 2012. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
NICK SPAGNOLO,
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Plaintiff,
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vs.
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UNITED STATES SOCIAL
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SECURITY ADMINISTRATION, )
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Defendant.
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_____________________________ )
CV. NO. 11-00353 DAE-RLP
ORDER: (1) ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION AND (2) DISMISSING THE ACTION
On June 2, 2011, Plaintiff Nick Spagnolo (“Plaintiff”) filed a fourpage complaint relating to claims for disability, Social Security Disability,
Insurance benefits, and Supplemental Security Income benefits. (See Doc. # 1.)
Plaintiff also filed an Application to Proceed Without Payment of Fees. (Doc. # 2.)
On June 17, 2011, United States Magistrate Judge Richard L. Puglisi
issued a Findings and Recommendation that Plaintiff’s Complaint be dismissed
with leave to amend and that his Application to Proceed Without Prepayment of
Fees be denied. (Doc. # 6.) Judge Puglisi found that the Complaint failed to
satisfy Federal Rule of Civil Procedure (“Rule”) 8 because Plaintiff “has not
alleged facts sufficient to show that he has exhausted his administrative remedies
before seeking judicial review.” (Id. at 4.) Judge Puglisi meticulously reviewed
Plaintiff’s exhibits attached to the Complaint, (id. at 6–7,) and ultimately
concluded that Plaintiff should be granted leave to file an amended complaint
addressing the deficiencies. (Id. at 7–8.) Because Judge Puglisi found the
Complaint wanting, he also recommended that “Plaintiff’s Application be denied
and that Plaintiff be given leave to file another Application if he chooses to file an
amended complaint.” (Id. at 8.) Plaintiff objected thereafter. (See Doc. # 9.) On
July 19, 2011, this Court issued an Order denying Plaintiff’s Objections and
adopting Judge Puglisi’s Findings and Recommendation. (Doc. # 14.)
Plaintiff subsequently filed three documents that appeared to comprise
his amended Complaint. The documents are entitled: (1) “Amended Pleading Order Dated June 17, 2011” (Doc. # 13), (2) “Supplemental Pleading: To Amend
Pleading Dated July 15, 2011” (Doc. # 16), and (3) “Amendment - Damages”
(Doc. # 18) (collectively, “Amended Pleadings”). On August 29, 2011, Plaintiff
filed his Second Application to Proceed in District Court without Prepaying Fees
or Costs. (Doc. # 27.)
On August 30, 2011, Judge Puglisi issued a Findings and
Recommendation that Plaintiff’s Second Application to Proceed Without
Prepayment of Fees be denied and that Plaintiff’s Amended Pleadings be dismissed
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without leave to amend. (Doc. # 28.) Judge Puglisi found, “[t]he claims in
Plaintiff’s amended pleadings are essentially the same claims that the court
previously found to be deficient because Plaintiff had failed to allege a proper basis
for jurisdiction.” (Id. at 6.)
On September 21, 2011, this Court issued an Order Adopting in Part
and Modifying in Part the Magistrate Judge’s Findings and Recommendation.
(Doc. # 34.) This Court held that it agreed with Judge Puglisi that Plaintiff’s
Amended Pleadings should be dismissed for failing to sufficiently allege
jurisdiction and failing to comply with Rule 8. (Id. at 9.) The Court also noted that
“Judge Puglisi has now twice made clear to Plaintiff what he must plead in order to
demonstrate he has exhausted his administrative remedies.” (Id. at 8.) However,
given that Plaintiff is proceeding pro se, the Court gave Plaintiff one final
opportunity to amend his Complaint. (Id. at 9.) The Court advised Plaintiff as
follows:
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Plaintiff’s amended Complaint shall be comprised of a single
document.
Plaintiff must succinctly and clearly state the dates of the state’s
adverse determinations he is challenging.
Plaintiff must then state specifically when he sought
reconsideration of those determinations.
Plaintiff must next provide the dates he presented his
complaints to an Administrative Law judge.
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•
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Plaintiff must provide the dates on which he sought review of
the Administrative Law judge’s adverse decision before the
Appeals Counsel.
Plaintiff must finally provide the date in which the Appeals
Counsel denied his requests for review.
All of this must be done clearly and coherently; the Court will no
longer tolerate confused and unorganized pleadings. A failure to
comply with any aspect of these directions will result in dismissal of
these proceedings with prejudice.
(Id. at 9–10.) Plaintiff was given thirty days to amend his Complaint and refile his
Application to Proceed Without Prepayment of Fees. (Id. at 10.) Plaintiff
subsequently filed a Third Application to Proceed Without Prepayment of Fees but
did not file an amended Complaint. (Doc. # 35.)
On September 28, 2011, Plaintiff filed a Motion to Recuse this Judge
from presiding over this case. (Doc. # 37.) Judge Puglisi issued a Memorandum
Opinion and Order Denying Plaintiff’s Motion for Recusal. (Doc. # 38.) On
October 26, 2011, this Court issued an Order Denying Plaintiff’s Motion and
granting Plaintiff an additional thirty days to file an amended Complaint.1 (Doc.
# 40.) That deadline expired on November 25, 2011 and to date, no amended
Complaint has been filed.
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Plaintiff appealed this Court’s Order denying his recusal motion to the
Ninth Circuit. (Doc. # 41.) On January 11, 2012, the Ninth Circuit issued an
Order dismissing the appeal for lack of jurisdiction. (Doc. # 49.)
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On December 21, 2011, Judge Puglisi issued a Findings and
Recommendation that Plaintiff’s Third Application to Proceed Without
Prepayment of Fees be denied as moot because there is no operative complaint in
this action. (Doc. # 48.) No objections to that Findings and Recommendation
have been filed.
DISCUSSION
Federal Rule of Civil Procedure (“Rule”) 41(b) grants district courts
the authority to sua sponte dismiss actions for failure to prosecute or for failure to
comply with court orders. See Link v. Wabash R.R. Co., 370 U.S. 626, 629–31
(1962) (“The power to invoke this sanction is necessary in order to prevent undue
delays in the disposition of pending cases and to avoid congestion in the calendars
of the District Courts.”). The Court has discretion to dismiss a plaintiff’s action for
failure to comply with an order requiring him to file an amended pleading within a
specified time period. Pagtalunan v. Galaza, 291 F.3d 639, 640 (9th Cir. 2002)
(discussing factors a court must weigh to determine whether to dismiss a claim for
failure to comply with a court order).
Before dismissing an action for failure to prosecute, the court must
weigh the following factors: “(1) the public’s interest in expeditious resolution of
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litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to
defendants/respondents; (4) the availability of less drastic alternatives; and (5) the
public policy favoring disposition of cases on their merits.” Id. at 642 (citing
Ferdik v. Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992)).
I.
Expeditious Resolution and Need to Manage Docket
The Court advised Plaintiff that he must file an amended complaint
within thirty days of the Court’s September 21, 2011 Order or risk dismissal of the
action with prejudice. (See Doc. # 34 at 10.) On October 26, 2011, the Court
granted Plaintiff an additional thirty days to amend his Complaint and again
reminded Plaintiff that failure to comply with the Court’s Order would result in
dismissal of the action with prejudice. (Doc. # 40 at 9.) Plaintiff’s failure to
amend his complaint hinders the Court’s ability to move this case forward and
indicates that Plaintiff does not intend to prosecute this action. See Yourish v.
California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999) (“The public’s interest in
expeditious resolution of litigation always favors dismissal.”). This factor plainly
favors dismissal.
II.
Prejudice to Defendants
The risk of prejudice to a defendant is related to the plaintiff’s reason
for failure to prosecute an action. See Pagtalunan, 291 F.3d at 642 (citing Yourish,
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191 F.3d at 991). Plaintiff offers no excuse or explanation for his failure to file an
amended complaint. When a party offers no excuse for failing to comply with a
court’s order, the risk of prejudice to the opposing party weighs in favor of
dismissal. See Yourish, 191 F.3d at 991–92.
III.
Availability of Less Drastic Alternatives
The next factor, the availability of less drastic alternatives, also
weighs in favor of dismissal. Plaintiff has twice filed deficient pleadings and this
Court has twice denied Plaintiff’s pleadings without prejudice. The Court has
granted Plaintiff a third opportunity to file an amended complaint and has provided
a detailed list of the information that must be included. Although Plaintiff had
failed to satisfy basic pleading requirements, the Court sought to avoid dismissing
the Complaint with prejudice by granting Plaintiff thirty days to amend his
Complaint and subsequently extending that deadline. See Henderson v. Duncan,
779 F.2d 1421, 1424 (9th Cir. 1986) (“The district court need not exhaust every
sanction short of dismissal before finally dismissing a case, but must explore
possible and meaningful alternatives.”). Plaintiff has given this Court no
indication that he intends to file an amended pleading and continue prosecuting
this action. This Court has attempted to explore “possible and
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meaningful alternatives to dismissal.” Id. Plaintiff has been non-responsive and
noncompliant with respect to these alternatives. Given Plaintiff’s failure to
prosecute this action, there is no appropriate alternative to dismissal.
IV.
Public Policy
Public policy favoring the disposition of cases on their merits
ordinarily weighs against dismissal. It is, however, a plaintiff’s responsibility to
prosecute the action at a reasonable pace and to refrain from dilatory and evasive
tactics. See Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991).
Plaintiff has failed to discharge this responsibility despite the Court’s order to the
contrary. Given these circumstances, the public policy favoring the resolution of
disputes on the merits does not outweigh the other factors favoring dismissal.
Plaintiff’s Action is therefore DISMISSED.
CONCLUSION
For the reasons set forth above, the Court ADOPTS the Magistrate
Judge’s Findings and Recommendation That Plaintiff’s Third Application to
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Proceed Without Prepayment of Fees Be Denied as Moot and DISMISSES
Plaintiff’s action. The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
Dated: Honolulu, Hawaii, January 11, 2012.
_____________________________
David Alan Ezra
United States District Judge
Spagnolo v. Social Security Administration, Cv. No. 11-00353 DAE-RLP;
ORDER: (1) ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND
RECOMMENDATION AND (2) DISMISSING THE ACTION
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