Webb v. Berryhill

Filing 24

ORDER DISMISSING PLAINTIFF'S CLAIMS WITH PREJUDICE AND DIRECTING THAT THE CASE BE CLOSED. Signed by JUDGE LESLIE E. KOBAYASHI on 10/17/2017. Plaintiff's § 552a(d) claim, his IIED claim, and his claim a sserting a § 405(g) appeal are HEREBY DISMISSED WITH PREJUDICE. (eps, )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 served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIVIL 16-00233 LEK-RLP

FRANK WEBB JR.,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL, Acting
)
Commissioner of Social
)
Security,
)
)
)
Defendant.
_____________________________ )

ORDER DISMISSING PLAINTIFF’S CLAIMS WITH PREJUDICE
AND DIRECTING THAT THE CASE BE CLOSED
A Judgment in a Civil Case (“Judgment”) was entered on
June 14, 2017.

[Dkt. no. 19.]

On June 19, 2017, pro se

Plaintiff Frank Webb Jr. (“Plaintiff”) filed a document that was
construed as a motion for relief pursuant to Fed. R. Civ. P. 60.
[Dkt. nos. 20 (motion), 21 (entering order construing motion).]
On August 16, 2017, this Court issued the Order Granting
Plaintiff’s Motion for Relief Pursuant to Fed. R. Civ. P. 60
(“8/16/17 Order”).

[Dkt. no. 23.]

The 8/16/17 Order granted

Plaintiff’s motion and allowed him to file amended complaint
asserting his 5 U.S.C. § 552a(d) claim, his intentional
infliction of emotional distress claim (“IIED”), and his claim
asserting a 42 U.S.C. § 405(g) appeal.

[8/16/17 Order at 5.]

This Court’s previous orders dismissing those claims with
prejudice were set aside.

[Id. at 7-8.]

The 8/16/17 Order

directed Plaintiff to file his amended complaint by October 10,

2017.

[Id. at 8.]
Plaintiff has neither filed his amended complaint nor

requested an extension of the deadline to file his amended
complaint.
case.

This Court FINDS that Plaintiff has abandoned this

Because Plaintiff has abandoned this case and failed to

comply with the 8/16/17 Order, this Court has the discretion to
dismiss his claims with prejudice.

See Yourish v. Cal.

Amplifier, 191 F.3d 983, 988 (9th Cir. 1999) (holding that the
plaintiff’s failure to comply with a minute order setting forth
the deadline to file the amended complaint gave the district
court the discretion to dismiss the case under Fed. R. Civ. P.
41(b)).1

After weighing the five dismissal factors set forth in

Dreith v. Nu Image, Inc., 648 F.3d 779, 788 (9th Cir. 2011),2
this Court finds that the public interest in the expeditious
resolution of this litigation and this Court’s interest in

1

Fed. R. Civ. P. 41(b) states, in pertinent part: “If the
plaintiff fails to prosecute or to comply with these rules or a
court order, a defendant may move to dismiss the action or any
claim against it.”
2

The Ninth Circuit has
identified five factors that a district court must
consider before dismissing a case . . . : (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 other
party; (4) the public policy favoring the
disposition of cases on their merits; and (5) the
availability of less drastic sanctions.

Dreith, 648 F.3d at 788 (citations and quotation marks omitted).
2

managing the docket strongly outweigh the policy favoring
disposition of cases on the merits.

Moreover, Defendant

Nancy A. Berryhill, Acting Commissioner of Social Security
(“Defendant”), will not be prejudiced by dismissal because there
have been minimal filings and proceedings on the merits of
Plaintiff’s claims, and there are no less drastic alternatives
available at this time.
Plaintiff’s § 552a(d) claim, his IIED claim, and his
claim asserting a § 405(g) appeal are HEREBY DISMISSED WITH
PREJUDICE.

There being no remaining claims in this case, this

Court DIRECTS the Clerk’s Office to enter judgment in favor of
Defendant and close the case immediately.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, October 17, 2017.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

FRANK WEBB JR. VS. NANCY A. BERRYHILL, ACTING DIRECTOR OF SOCIAL
SECURITY; CIVIL 16-00233 LEK-RLP; ORDER DISMISSING PLAINTIFF’S
CLAIMS WITH PREJUDICE AND DIRECTING THAT THE CASE BE CLOSED
3