(SS) Ruiz v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTINA K. RUIZ, Case No. 1:20-cv-1192-HBK 12 Plaintiff, ORDER DIRECTING PLAINTIFF TO SHOW CAUSE WHY THE ACTION SHOULD NOT 13 v. BE DISMISSED FOR LACK OF PROSECUTION AND/OR FAILURE TO 14 COMMISSIONER OF SOCIAL COMPLY WITH A COURT ORDER SECURITY, 15 (Doc. No. 5) Defendant. 16 February 11, 2022-Deadline 17 This matter comes before the Court upon periodic review of the file. Plaintiff initiated 18 this action proceeding pro se on August 24, 2020. (Doc. No. 1). Plaintiff was granted leave to 19 proceed in forma pauperis. (Doc. No. 3). On August 26, 2020, the Clerk issued summons and a 20 scheduling order issued. (Doc. Nos. 4, 5). The summonses were returned executed as to the 21 Commissioner of Social Security (“Commissioner”). (Doc. No. 7). On May 17, 2021, the 22 Commissioner filed the certified administrative record (“CAR”) triggering certain deadlines. 23 (Doc. No. 11). 24 A review of the docket reveals no action by Plaintiff to further prosecute this case. See 25 docket. Specifically, within thirty days of the Commissioner filing the CAR, Plaintiff was supposed 26 to mail an informal letter brief to the Commissioner, filing a separate proof of service in the Court 27 28 1 | indicating the brief was served on the Commissioner.' (Doc. No. 5 at 2, §2(b)). Plaintiff has not 2 | done so. (See docket). Further, Plaintiff has not filed an opening brief by the deadline specified in 3 | the Scheduling Order. (See Doc. No. 5 at 3, 4, 6, requiring opening brief no later than 105 days 4 | after the filing of the CAR). 5 The Court has inherent authority to dismiss an action for lack of prosecution. Link vy. 6 | Wabash R. Co., 370 U.S. 626 (1962). Federal Rule of Civil Procedure 41(b) also permits courts 7 | to involuntarily dismiss an action when a litigant fails to prosecute an action or fails to comply 8 | with acourt order. See Fed. R. Civ. P. 41(b); see Applied Underwriters v. Lichtenegger, 913 F.3d 9 | 884, 889 (9th Cir. 2019) (citations omitted); Hells Canyon Pres. Council v. U.S. Forest Serv., 403 10 | F.3d 683, 689 (9th Cir. 2005) (“[T]he consensus among our sister circuits, with which we agree, 11 | is that courts may dismiss under Rule 41(b) sua sponte, at least under certain circumstances.”’). 12 | Local Rule 110 similarly permits courts to impose sanctions on a party who fails to comply with a 13 || court order. 14 Accordingly, it is ORDERED: 15 1. No later than February 11, 2022, Plaintiff shall show cause in writing, why this case 16 | should not be dismissed for failure to prosecute and/or failure to comply with the Court’s August 17 | 26, 2020 Scheduling Order. Plaintiff's failure to respond to this Order, or explain her inability to 18 || respond, will result in a recommendation that the district court dismiss this case without further 19 | notice for Plaintiff's failure to comply with a court order and to prosecute this action. 20 2. In the alternative, Plaintiff may file a notice of voluntary dismissal under Fed. R. Civ. 21 | P. 41 (a) if she wishes to withdraw this action. 22 *3 | Dated: _ January 26, 2022 Mihaw. □□ fares Back 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE 26 27 ' Thereafter, the Commissioner was supposed to file a response to the letter brief within thirty-five days, 28 filing a separate proof of service indicating that the response was served on the Plaintiff. (/d. at §[2(c)).