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Samuel M. Herron v. Michael J. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 28, 2012

SAMUEL M. HERRON,
PLAINTIFF,
v.
MICHAEL J. ASTRUE,
DEFENDANT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

REPORT AND RECOMMENDATION OF) UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable George H. Wu, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

Plaintiff, pro se and in forma pauperis, filed a Complaint on September 21, 2009, seeking review of an administrative decision made by Defendant. By Order filed August 18, 2011, the case was reopened following a "sentence six" remand. Plaintiff failed to file a motion for summary judgment within the allotted time.

On January 4, 2012, the Magistrate Judge issued a Minute Order requiring Plaintiff to: "(1) file Plaintiff's motion for summary judgment; or (2) file declaration(s), signed under penalty of perjury, attempting to show cause, if there be any, why this action should not be dismissed for failure to prosecute." The Minute Order cautioned Plaintiff that "[f]ailure timely to comply with this order will be deemed consent to the dismissal of this action." Nevertheless, Plaintiff failed to file the required motion for summary judgment or declaration(s) within the allotted time.

DISCUSSION

This action should be dismissed for failure to prosecute and failure to comply with the January 4, 2012 Minute Order. See Link v. Wabash, R.R., 370 U.S. 626, 629-30 (1952) (court has inherent power to achieve the orderly and expeditious disposition of cases by dismissing actions for failure to prosecute); Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.), cert. denied, 506 U.S. 915 (1992) (court may dismiss action for failure to comply with a court order, after the court considers the appropriate factors); see also Fed. R. Civ. P. 41(b).

RECOMMENDATION

For all of the reasons discussed herein, it is recommended that the Court issue an order: (1) accepting and adopting this Report and Recommendation; and (2) dismissing the action without prejudice.

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.

20120228

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