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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 ANGELIQUE NICOLE HERNANDEZ, No. 1:18-cv-01372-AWI-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 On October 5, 2018, Plaintiff Angelique Nicole Hernandez, proceeding pro se, filed a 18 complaint appealing the Commissioner’s denial of her application for disability insurance benefits 19 pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security 20 Act. Doc. 1. The Scheduling Order provided that if the parties could not agree to remand 21 following service of their confidential letter briefs, Plaintiff was to file her opening brief thirty 22 23 days after service of the Commissioner’s responsive letter brief. Doc. 5 at ¶ 6. 24 The Commissioner served Plaintiff with his responsive letter brief on June 3, 2019. AR 25 16. Plaintiff did not file her opening brief within thirty days or take any other action concerning 26 this case. Accordingly, on July 18, 2019, the undersigned issued an order directing Plaintiff to 27 file her opening brief within fifteen days. Doc. 17. Plaintiff did not respond to the July 18, 2019, 28 1 order in any way. 2 Rule 110 of this Court’s Local Rules provides that the “failure … of a party to comply … 3 with any order of the Court may be grounds for imposition by the Court of any and all sanctions 4 … within the inherent power of the Court.” This Court has the inherent power to manage its 5 docket. Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A court may dismiss an 6 7 action, with prejudice, based on a party’s failure to prosecute an action, failure to obey a court 8 order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 46 F.3d 52, 53-54 (9th 9 Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. Bonzelet, 963 F.2d 1258, 10 1260-61 (9th Cir. 1992) (dismissal for failure to comply with an order requiring amendment of 11 complaint); Carey v. King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal for failure to 12 comply with local rule requiring pro se plaintiffs to keep court apprised of address); Henderson v. 13 Duncan, 779 F.2d 1421, 1424 (9th Cir. 1986) (dismissal for lack of prosecution and failure to 14 15 comply with local rules). 16 In determining whether to dismiss an action for lack of prosecution, failure to obey a 17 court order, or failure to comply with local rules, the court must consider several factors: (1) the 18 public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; 19 (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on 20 their merits; and (5) the availability of less drastic alternatives. Ghazali, 46 F.3d at 53; Ferdik, 21 963 F.2d at 1260-61; Thompson, 782 F.2d at 831; Henderson, 779 F.2d at 1423-24. In this case, 22 23 Plaintiff repeatedly failed to comply with the scheduling order in a timely manner, requiring the 24 magistrate judge to issue orders directing her to return her consent/decline form and to file proof 25 of service of her confidential letter. See Docs. 5, 9, and 14. As a result the policy factors favor 26 dismissal of the above-captioned case due to Plaintiff’s repeated failure to comply with the 27 scheduling order. 28 1 RECOMMENDATION 2 Accordingly, the undersigned recommends that the Court dismiss the above-entitled case 3 for failure to prosecute. 4 These Findings and Recommendations are submitted to the district judge assigned to this 5 action, pursuant to Title 28 of the United States Code § 636(b)(1)(B). Within fourteen (14) days 6 7 of service of this recommendation, Plaintiff may file written objections to these findings and 8 recommendations with the Court. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” The district judge will review the 10 magistrate judge’s Findings and Recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 11 Plaintiff is advised that failure to file objections within the specified time may waive the right to 12 appeal the district judge’s order. Wilkerson v. Wheeler, 772 F. 3d 834, 839 (9th Cir. 2014) (citing 13 Baxter v. Sullivan, 923 F. 2d 1391, 1394 (9th Cir. 1991); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 14 15 1991)). 16 17 IT IS SO ORDERED. 18 Dated: August 19, 2019 /s/ Gary S. Austin 19 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28