Denman v. Saul ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 AHMAD RASHAD DENMAN, Case No. 19cv2441-MMA-AGS 12 Plaintiff, ORDER ADOPTING REPORT AND 13 v. RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE; 14 ANDREW SAUL, Commissioner of Social Security, 15 [Doc. No. 11] Defendant. 16 DISMISSING APPEAL WITHOUT 17 PREJUDICE FOR FAILURE TO PROSECUTE 18 19 20 21 On October 30, 2019, Plaintiff Ahmad Rashad Denman, proceeding pro se, filed 22 an action in the small claims division of the Superior Court of California, County of San 23 Diego, challenging the denial of an application for supplemental security income and 24 social security disability insurance benefits. See Doc. No. 1, Ex. 1. On December 19, 25 2019, Defendant Andrew Saul, sued in his official capacity as the Commissioner of the 26 Social Security Administration, appropriately removed the action to this Court. See Doc. 27 No. 1. On February 18, 2020, Defendant answered Plaintiff’s complaint by lodging the 28 administrative record of proceedings before the Social Security Administration. See Doc. 1 No. 8; CIVLR 7.1.e.6.d. Accordingly, Plaintiff’s merits brief in support of his appeal was 2 due within 35 days thereafter, on or before March 24, 2020. See CIVLR 7.1.e.6.e.1. 3 Plaintiff failed to file a merits brief or otherwise appear to prosecute this appeal. 4 United States Magistrate Judge Andrew G. Schopler twice ordered Plaintiff to show 5 cause why this appeal should not be dismissed for failure to prosecute.1 See Doc. Nos. 9, 6 10. To date, Plaintiff has failed to respond to the Court’s orders. 7 Judge Schopler has issued a thorough and well-reasoned Report recommending 8 that the Court dismiss this appeal based on Plaintiff’s failure to prosecute the action. See 9 Doc. No. 11. Neither party objected to the Report and Recommendation. The time for 10 filing objections has expired. See id. at 4. 11 When no objections are filed, the district court need not review the Report and 12 Recommendation de novo. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 13 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). 14 A district judge may nevertheless “accept, reject, or modify, in whole or in part, the 15 findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see 16 also Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006). 17 The Court has made a review and determination in accordance with the 18 requirements of 28 U.S.C. § 636 and applicable case law. Upon due consideration, the 19 Court ADOPTS Judge Schopler’s Report and Recommendation and DISMISSES this 20 appeal without prejudice for the reasons stated therein and pursuant to Civil Local Rule 21 41.1.2 See CivLR 41.1.b (“Failure to comply with the provisions of the local rules of this 22 23 24 1 All matters arising in this social security appeal are properly referred to the assigned magistrate judge 25 for report and recommendation pursuant to statute and this District’s Civil Local Rules. See 28 U.S.C. § 636(b)(1)(B); CIVLR 72.1. 26 2 The Court notes that Judge Schopler recommends this action be dismissed with prejudice. See Doc. 27 No. 11 at 4. The Court finds that dismissal without prejudice is more appropriate under the circumstances and therefore declines to adopt that aspect of the Report and Recommendation. See, e.g., 28 1 court may also be grounds for dismissal . . ..”); see also Jacobsen v. Filler, 790 F.2d 2 || 1362, 1364-65 (9th Cir. 1986) (pro se parties are not excused from knowing the rules of 3 || the court). The Court DIRECTS the Clerk of Court to enter judgment accordingly and 4 || terminate the action. 5 IT IS SO ORDERED. : 6 || DATE: June 30, 2020 Mikel MW = f “li 4 HON. MICHAEL M. ANELLO United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 8 easily justified sanction for lack of prosecution). The Court otherwise adopts the Report and Recommendation in its entirety.