(SS) Encinas v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JULIO C. ENCINAS, No. 1:19-cv-00470-LJO-GSA 11 Plaintiff, 12 FINDINGS AND RECOMMENDATION v. FOR DISMISSAL OF CASE FOR 13 FAILURE TO PROSECUTE 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 Plaintiff Julio C. Encinas, proceeding pro se, filed a complaint requesting a review of the 18 Commissioner’s denial of disability benefits on April 11, 2019. Doc. 1. On May 28, 2019, the 19 Court granted Plaintiff’s motion to proceed in forma pauperis and issued a scheduling order and 20 summons to be completed and returned for service within twenty (20) days. Docs. 3, 4 and 5. 21 The scheduling order included detailed instructions for preparation and return of the summons for 22 23 service by the U.S. Marshal. Doc. 5-3. 24 By July 18, 2019, Plaintiff had not returned the summons and associated documents to the 25 Clerk of Court for filing by the U.S. Marshal, nor taken any other action to serve the 26 Commissioner with the complaint. Accordingly, the Court entered an order directing Plaintiff 27 either to return the summons and related documents for service by the U.S. Marshal or to file 28 1 proof of service within ten days. Doc. 6. Plaintiff did not respond to the July 18, 2019, order in 2 any way. 3 Rule 110 of this Court’s Local Rules provides that the “failure … of a party to comply … 4 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 5 … within the inherent power of the Court.” This Court has the inherent power to manage its 6 7 docket. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an 8 action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court 9 order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 10 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 11 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 12 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 13 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Henderson v. 14 15 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to 16 comply with local rules). 17 In determining whether to dismiss an action for lack of prosecution, failure to obey a 18 court order, or failure to comply with local rules, the court must consider several factors: (1) the 19 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 20 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 21 their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 22 23 963 F.2d at 1260-61; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. 24 RECOMMENDATION 25 Accordingly, the undersigned recommends that the Court dismiss the above-entitled case 26 for failure to prosecute. 27 /// 28 1 These Findings and Recommendations are submitted to the district judge assigned to this 2 action, pursuant to Title 28 of the United States Code § 636(b)(1)(B). Within fourteen (14) days 3 of service of this recommendation, Plaintiff may file written objections to these findings and 4 recommendations with the Court. Such a document should be captioned “Objections to 5 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 6 7 magistrate judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 8 Plaintiff is advised that failure to file objections within the specified time may waive the right to 9 appeal the district judge’s order. Wilkerson v. Wheeler, 772 F. 3d 834, 839 (9th Cir. 2014) (citing 10 Baxter v. Sullivan, 923 F. 2d 1391, 1394 (9th Cir. 1991); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 11 1991)). 12 13 IT IS SO ORDERED. 14 15 Dated: August 9, 2019 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28