Escareno v. Social Security Administration

Filing 5

ORDER TO SHOW CAUSE by Chief Magistrate Judge Karen B. Molzen. Show Cause Response due by 2/27/2017. (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DENNIS G. ESCARENO,
Plaintiff,
vs.

CIV No. 16-0847 KBM

NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,
Defendant.

ORDER TO SHOW CAUSE
THIS MATTER is before the Court sua sponte. Plaintiff filed his Complaint on July 25,
2016. Doc. 1. On July 26, 2016, the Court authorized Plaintiff to proceed without prepayment
of filing fee, costs or security, pursuant to 28 U.S.C. § 1915, and ordered the United States
Marshal to serve a copy of the Summons and Complaint on the United States Attorney, the
Attorney General, and the Office of the General Counsel, in accordance with Fed. R. Civ. P.
4(c)(3). Doc. 4. Although the docket indicates that a summons was issued by the Clerk’s
Office on August 11, 2016, there is no indication that Plaintiff’s counsel actually delivered this
summons to the U.S. Marshal Service, as there is no return of service or entry of appearance
by counsel for Defendant. Furthermore, a notation on the docket indicates that counsel for
Plaintiff advised the Clerk’s Office on January 20, 2017, that he had not yet delivered the
summons to the U.S. Marshal Service for service.
Federal Rule of Civil Procedure 4(m) provides:
If a service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the
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court – on motion or on its own after notice to the plaintiff –
must dismiss the action without prejudice against the
defendant or order that service be made within a specified
time.

Fed. R. Civ. P. 4(m). More than 120 days have passed since the filing of Plaintiff’s Complaint
without any indication that service has been made on Defendant. Moreover, there has been
no any activity in this case since the issuing of the summons on August 11, 2016. Thus, there
appears to be a manifest lack of interest on the part of Plaintiff in litigating this matter.
The Court has the inherent power to impose a variety of sanctions on litigants in
order to, among other things, regulate its docket and promote judicial efficiency. Martinez v.
Internal Revenue Service, 744 F.2d 71, 73 (10th Cir. 1984). One such sanction within the
discretion of the Court is to dismiss an action for want of prosecution. See, e.g., Nat’l Hockey
League v. Metro. Hockey Club, Inc., 427 U.S. 639, 642-43(1976); Link v. Wabash R.R. Co.,
370 U.S. 626, 629-30 (1962).
IT IS THEREFORE ORDERED that Plaintiff must show cause, in a written
document to be filed with the Court no later than Monday, February 27, 2017, why this case
should not be dismissed. Plaintiff is hereby notified that failure to respond to this Order may
result in dismissal of this action without further notice.
IT IS SO ORDERED.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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