(SS) Berg v. Social Security Administration ( 2020 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MATTHEW BERG, No. 2:19-CV-1124-JAM-DMC 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding pro se, brings this action for judicial review of a final 19 decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 On September 4, 2019, the court granted plaintiff in forma pauperis status and 21 required plaintiff to submit to the United States Marshal, within 15 days of the date of service of 22 the order, a completed summons and copies of the complaint, and file a statement with the court 23 that said documents have been submitted. Plaintiff was warned that failure to comply may 24 result in dismissal of this action for lack of prosecution and failure to comply with court rules 25 and orders. See Local Rule 110. More than 15 days have elapsed and plaintiff has not 26 complied. On October 3, 2019, the court directed plaintiff to show cause in writing within 30 27 days why the action should not be dismisses for failure to comply. See ECF No. 7. Plaintiff 28 failed to respond. 1 The court must weigh five factors before imposing the harsh sanction of dismissal. 2 | See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal 3 | Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in 4 | expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of 5 || prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits; 6 | and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52, 7 | 53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate 8 || sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone, 9 | 833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where 10 | there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 11 1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an 12 | order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 13 1992). 14 Having considered these factors, and in light of plaintiff's failure to submit the 15 | documents necessary for service of process as directed, the court finds that dismissal of this 16 | action is appropriate. 17 Based on the foregoing, the undersigned recommends that this action be dismissed, 18 | without prejudice, for lack of prosecution and failure to comply with court rules and orders. 19 These findings and recommendations are submitted to the United States District 20 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within 14 days 21 | after being served with these findings and recommendations, any party may file written 22 | objections with the court. Responses to objections shall be filed within 14 days after service of 23 | objections. Failure to file objections within the specified time may waive the right to appeal. See 24 | Martinez v. Ylist, 951 F.2d 1153 (9th Cir. 1991). 25 26 Dated: January 2, 2020 Sx