Miller v. Kijakazi ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN FRANCISCO DIVISION 11 12 BERNARD M., Case No. 23-cv-02911-PHK 13 Plaintiff, 14 v. ORDER TO SHOW CAUSE 15 KILOLO KIJAKAZI, 16 Defendant. 17 18 19 This is a social security appeal brought by Plaintiff Bernard M.1 (“Plaintiff”) against the 20 Acting Commissioner of the Social Security Administration, Defendant Kilolo Kijakazi 21 (“Commissioner”), pursuant to 42 U.S.C. § 405(g). [Dkt. 1]. The Parties have consented to 22 proceed before a United States magistrate judge for all purposes, including the entry of a final 23 judgment under 28 U.S.C. § 636(c). See Dkts. 7-8. The matter is presently before the Court sua 24 sponte regarding Plaintiff’s failure to comply with the Court’s procedural Order and deadline for 25 filing an opening brief. 26 1 In actions involving requested review of a decision by the Commissioner of the Social Security 27 Administration, the Court generally uses the first name and initial of last name (or just the initials) 1 Plaintiff, who is pro se, commenced this action on June 13, 2023, filing both a form social 2 security Complaint and an application to proceed in forma pauperis (“IFP”). [Dkts. 1-2]. On June 3 15, 2023, the Clerk issued the Court’s standard procedural Order for social security appeals, 4 setting forth the mandatory scheduling deadlines governing this case. [Dkt. 4]. Among other 5 things, the procedural Order advised that Plaintiff “must file and serve on the Commissioner a 6 brief for the requested relief within 30 days after the answer is filed.” Id. 7 On July 7, 2023, the Court granted Plaintiff’s IFP application, and on July 31, 2023, the 8 Court authorized service of the summons and Complaint on the Commissioner. [Dkts. 6, 10]. On 9 August 10, 2023, the Commissioner answered the Complaint by filing a certified copy of the 10 administrative record. [Dkt. 11]. Pursuant to the procedural Order entered in this case, Plaintiff’s 11 opening brief was due September 11, 2023. See Dkt. 4; see also Fed. R. Civ. P. 6(a). To date, 12 Plaintiff has not filed his opening brief. Nor has Plaintiff sought an extension of the deadline to do 13 so from this Court. 14 Federal Rule of Civil Procedure 41(b) permits the involuntary dismissal of an action if a 15 plaintiff fails to prosecute the case or fails to comply with court Orders. See Hells Canyon 16 Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th Cir. 2005) (recognizing that a 17 court may sua sponte dismiss an action pursuant to Rule 41(b)); see also Link v. Wabash R. Co., 18 370 U.S. 626, 629 (1962) (“The authority of a federal trial court to dismiss a plaintiff’s action with 19 prejudice because of his failure to prosecute cannot seriously be doubted.”); Ferdik v. Bonzelet, 20 963 F.2d 1258, 1260 (9th Cir. 1992) (“District courts have the inherent power to control their 21 dockets and, ‘[i]n the exercise of that power they may impose sanctions, including, where 22 appropriate, . . . dismissal of a case.’”). The Court hereby provides NOTICE that Plaintiff’s 23 failure to prosecute this action and comply with the procedural Order deadline is grounds for the 24 dismissal of this case, in its entirety, in the absence of any justification for that failure. 25 At this time, the Court will not exercise its authority to dismiss this case but rather 26 ORDERS Plaintiff to show cause why dismissal is not appropriate. Therefore, by this Order, the 27 Court INSTRUCTS Plaintiff either to explain his failure to file his opening brief by the deadline 1 Accordingly, IT IS HEREBY ORDERED THAT: 2 1. On or before November 27, 2023, Plaintiff shall file a response with the Court which 3 shows cause in writing as to why the Court should not dismiss this case due to □□□□□□□□□□□ 4 failure to comply with the procedural Order’s deadline for filing his opening brief. Instead 5 of a response which shows cause, Plaintiff may simply file his opening brief on or before 6 November 27, 2023. 7 2. The Court hereby provides Plaintiff NOTICE that failure to comply with this Order to 8 Show Cause, as directed herein, may result in further action up to and including dismissal 9 of this action, in its entirety, pursuant to Federal Rule of Civil Procedure 41(b). ES DISTRIG 10 kK LO oO 11 Dated: November 8, 2023 ky "2 om Oo ORDERED 2 f\yr 1S 5 3 12 —_> < WO □□ Kena? | IS eZ □ O 13 Z. 4. Kang Be AL = Gu CY LISTRICS 16 PETER H. KANG United States Magistrate Judge 17 Oo Z 18 19 20 21 22 23 24 25 26 27 28