Goodman v. Colvin

Filing 20

ORDER OF DISMISSAL FOR LACK OF PROSECUTION by Judge J Richard Creatura. (SH) (Copy mailed to plaintiff.)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 9 DANIEL R. GOODMAN, 10 Plaintiff, 11 ORDER TO DISMISS FOR LACK OF PROSECUTION v. 12 13 CASE NO. 2:16-cv-01051 JRC NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, 1 14 Defendant. 15 16 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and 17 18 19 20 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, Dkt. 8; Consent to Proceed Before a United States Magistrate Judge, Dkt. 10). 21 22 1 23 24 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action need be taken, pursuant to the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). ORDER TO DISMISS FOR LACK OF PROSECUTION -1 1 This matter is before the Court on this Court’s Order to Show Cause, dated and 2 mailed on January 24, 2017, why this matter should not be dismissed for failure to follow 3 the Court’s Scheduling Order. See Dkt. 19. Plaintiff was again provided direction on what 4 5 to include in his opening brief and ordered either to file his opening brief or provide an explanation to the Court why he was not able to file his brief. Id. Plaintiff has failed to 6 file anything in response to this Court’s Order. For this reason, this action shall be 7 dismissed without prejudice. 8 BACKGROUND 9 10 Plaintiff, Daniel Goodman, proceeding pro se filed his complaint in June, 2016. 11 See Dkts. 1, 5 2. Because plaintiff is proceeding pro se and was granted in forma pauperis 12 status (Dkt. 4), the Court directed service of the summons and complaint. Dkt. 6. 13 Following two motions for extensions to file the answer (Dkt.11-16), the Acting 14 Commissioner filed the Answer/Administrative Record on November 14, 2016. Dkt. 17. 15 The Scheduling Order was filed and mailed to plaintiff on November 15, 2016. Dkt. 18. 16 This Order directed plaintiff to file an opening brief on or before December 21, 2016. 17 18 Plaintiff neither filed an opening brief nor asked the Court for more time to do so. This Court issued and mailed to plaintiff an Order to Show Cause on January 24, 2017. Dkt. 19 19. This Order stated in part: 20 21 If the Court finds that plaintiff failed to file his brief without just cause, the Court could dismiss the case. Local Civil Rule 11(c); see 22 23 24 2 The Court notes that on June 10, 2016, Goodman v. Colvin, 2:15-cv-01149 JLR-KLS was dismissed without prejudice for lack of prosecution. Plaintiff (pro se) failed to file an opening brief, or any document, after filing his complaint. ORDER TO DISMISS FOR LACK OF PROSECUTION -2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 also Fed. R. Civ. P. 41(b). Given the circumstances in this case, however, the Court would prefer to decide the case on the merits and does not deem the drastic measure of dismissal appropriate at this time. The Court therefore ORDERS: (1) Daniel Goodman, plaintiff, must submit to the Court by February 24, 2017 an opening brief explaining what the ALJ did wrong, with citations to the Administrative Record, what evidence supports plaintiff’s position, and why the ALJ’s error was harmful, and also must follow the requirements noted in the Scheduling Order (see Dkt. 18). (2) If plaintiff does not file or cannot file an opening brief, he must explain why the case should not be dismissed for failing to follow the Court’s scheduling order. He must submit this explanation to the Court no later than February 24, 2017. (3) If plaintiff files an opening brief or explains why he failed to follow the scheduling order, the Acting Commissioner shall file a response by March 24, 2017. (4) If plaintiff does not file an opening brief or does not explain why he failed to follow the scheduling order, the case shall be dismissed. (5) The Clerk is directed to mail a copy of this Order to plaintiff at the last known address. DISCUSSION The Court was not willing to risk dismissal of an action before consideration of the 16 merits when “other less drastic alternatives [we]re [] available,” in part, due to plaintiff’s 17 pro se status. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing Nevijel 18 v. North Coast Life Ins. Co., 651 F.2d 671, 674 (1981)). The Court provided notice to 19 20 21 plaintiff that this matter would be dismissed for lack of prosecution if plaintiff failed to follow the Court’s order and file an opening brief. Dkt. 19. Plaintiff has not filed anything 22 since August, 2016, when he filed his consent form, and July, 2016 when he 23 supplemented his signature on his in forma pauperis application. See Dkts. 3, 10. 24 ORDER TO DISMISS FOR LACK OF PROSECUTION -3 1 CONCLUSION 2 As plaintiff has failed to abide by this Court’s orders or show cause why this 3 4 5 matter should not be dismissed, this matter is dismissed without prejudice for lack of prosecution and the case is closed. The Clerk is directed to mail a copy of this Order to plaintiff at his last known 6 address. 7 Dated this 18th day of April, 2017. 8 A 9 10 J. Richard Creatura United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER TO DISMISS FOR LACK OF PROSECUTION -4

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