Foulks v. Colvin

Filing 16

ORDER TO SHOW CAUSE - Show Cause Response due by 4/21/2017 - by Judge J. Richard Creatura. Plaintiff to submit brief to Court or explain why the case should not be dismissed for failing to follow the Courts scheduling order by April 21, 2017. (Copy mailed to plaintiff.)(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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MANDY RAE FOULKS,
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Plaintiff,
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CASE NO. 2:16-cv-01405 JLR-JRC
ORDER TO SHOW CAUSE

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

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Defendant.
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This matter has been referred to United States Magistrate Judge J. Richard

17 Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR
18 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261,
19 271-72 (1976).
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This case is before the Court on plaintiff’s failure to comply with the Court’s

21 Scheduling Order and failure to prosecute this case.
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The Court’s initial Scheduling Order, (Dkt. 12), was dated and mailed to plaintiff
on November 9, 2016. This Order directed plaintiff to file an opening brief on or before

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ORDER TO SHOW CAUSE - 1

1 December 12, 2016. See id. Plaintiff filed a motion for continuance of the scheduling
2 order on December 8, 2016 (Dkt. 13) and the Court granted plaintiff’s motion. Dkt. 14.
3 Plaintiff’s opening brief then was due on or before January 20, 2017. See id. Plaintiff has
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failed to file an Opening Brief.
The initial Scheduling Order provides in pertinent part:

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(1) Plaintiff’s Opening Brief
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(a) Beginning on page one, plaintiff shall list the errors alleged (for
example, “Issue No. 1 – The ALJ failed to properly evaluate plaintiff’s
subjective complaints of pain.”), followed by a clear statement of the
relief requested. A general statement of an issue, such as “the ALJ’s
decision to deny benefits is not supported by substantial evidence,” is
unacceptable. Assignments of error that are not listed in this section of the
opening brief will not be considered or ruled upon.
(b) Plaintiff shall provide a brief summary of the relevant
procedural history of the case. Plaintiff shall not include a lengthy
recitation of background facts or medical evidence in this section.
Discussion of the relevant facts must be presented in the argument section
in the context of the specific errors alleged.
(c) Subsequent sections of the opening brief must fully explain
each issue raised in the assignments of error and must include citations to
the specific pages of the administrative record and the relevant legal
authority that support each argument and request for relief.

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Dkt. 12, p. 2.
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Plaintiff appealed the denial of her Social Security applications by filing this

20 lawsuit and thus has the responsibility to explain to the Court (1) specifically what the
21 ALJ did wrong, (2) what evidence supports this position, and (3) why the ALJ’s error
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was harmful, i.e., why it affected the outcome of the case. This responsibility is met by
filing an opening brief. The opening brief is important because it informs everyone of the

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ORDER TO SHOW CAUSE - 2

1 specific claims plaintiff wishes the Court to address, and gives the Acting Commissioner
2 an opportunity to respond. Without an opening brief, the Court would have to guess at
3 what claims plaintiff intends to present. Additionally, the Court cannot act as the lawyer
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for either side, that is, the Court cannot make arguments on behalf of a party and cannot
decide the case based on issues that the parties have not raised.

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Defendant Acting Commissioner filed a responsive brief “[o]ut of abundance of
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caution.” Dkt. 15. But only after both plaintiff and the Acting Commissioner file their
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briefs, will the Court be in a position to review the arguments made by both sides and
issue a decision. In this case, plaintiff’s failure to file an opening brief not only deprives

11 the Court of knowing what claims she wishes the Court to review, it also violates the
12 Court’s Scheduling Order. If plaintiff does not demonstrate that she failed to file her
13 brief with just cause, the Court could dismiss the case. Local Civil Rule 11(c); see, also
14 Fed. R. Civ. P. 41(b). Given the circumstances in this case, however, the Court would
15 prefer to decide the case on the merits and does not deem the drastic measure of dismissal
16 appropriate at this time.
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The Court therefore ORDERS:
(1)

Mandy Rae Foulks, plaintiff, must submit to the Court by April 21, 2017 a

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brief explaining what the ALJ did wrong, with citations to the Administrative Record;
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what evidence supports plaintiff’s position; and why the ALJ’s error was harmful, and
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also must follow the requirements noted in the Scheduling Order (see Dkt. 12).

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ORDER TO SHOW CAUSE - 3

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(2)

If plaintiff does not file or cannot file a brief, she must explain why the case

2 should not be dismissed for failing to follow the Court’s scheduling order. She must
3 submit this explanation to the Court no later than April 21, 2017.
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(3)

If plaintiff timely files a brief and/or explains why she failed to follow the

scheduling order, the Acting Commissioner shall file a response by May 12, 2017.

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(4)

If plaintiff does not file an opening brief and does not explain adequately

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why she failed to follow the scheduling order, the Court will file a Report and
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Recommendation, recommending that the case be dismissed.
(5)

The Clerk is directed to mail a copy of this Order to plaintiff at the last

11 known address.
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The Court directs plaintiff to the Court’s website, which includes information for

13 pro se litigants, such as the Pro Se Guide to Filing Your Lawsuit in Federal Court, which
14 includes resources for potentially finding legal advice:
15 http://www.wawd.uscourts.gov/representing-yourself-pro-se (last visited April 4, 2017).
16 See “Resources That May Help You” located at Pro Se Guide, pp. 35-37.
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Dated this 4th day of April, 2017.

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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER TO SHOW CAUSE - 4