United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING
ACTION WITHOUT PREJUDICE FOR FAILURE TO COMPLY WITH COURT
ORDERS AND FAILURE TO PROSECUTE (ECF No. 8) OBJECTIONS DUE
WITHIN THIRTY DAYS
April 8, 2016, Plaintiff Sylvia Estrada
(“Plaintiff”), proceeding pro se, filed this
action seeking judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”
or “Defendant”) denying her application for
disability benefits pursuant to the Social Security Act. (ECF
No. 1.) Plaintiff was ordered to file an application to
proceed in forma pauperis or pay the filing fee within thirty
days of April 11, 2016. (ECF No. 2.) On May 2, 2016,
Plaintiff filed an application to proceed in forma pauperis
in this action. (ECF No. 3.)
4, 2016, Plaintiff’s application to proceed in forma
pauperis in this action was granted, and summonses and the
scheduling order were issued in this action. (ECF Nos. 4, 5,
6.) The scheduling order informed Plaintiff that, except when
other provision was made pursuant to an application to
proceed in forma pauperis, the summons and complaint should
be served within twenty days and Plaintiff was required to
file a return of service with this court. (ECF No. 6 at
¶ 1.) This order informed Plaintiff that violations of
the order may result in sanctions pursuant to Local Rule 110.
(Id. at ¶ 15.) Plaintiff was also provided with
instructions to have the United States Marshal serve the
complaint. (ECF No. 6-3.)
on this same date, the Court issued an informational order
for pro se litigants. (ECF No. 7.) The informational order
set forth the specific requirements to serve this action on
the Commissioner of Social Security. (Id. at pp.
1-3.) This order also informed Plaintiff that failure to
comply with the order would be grounds for dismissal or other
appropriate sanctions. (Id. at p. 7.)
7, 2016, after Plaintiff did not request the Marshal to serve
the complaint nor did she file a notice of service, the Court
issued an order requiring Plaintiff to show cause why this
action should not be dismissed for failure to prosecute. (ECF
No. 8.) The order required Plaintiff to show cause in writing
by June 24, 2016 why this action should not be dismissed.
(Id. at 2.) Plaintiff was advised that failure to
respond to the order to show cause would result in the
dismissal of this action. (Id.) Plaintiff did not
file a response to the order to show cause or otherwise
respond to the June 7, 2016 order of the Court.
Rule 110 provides that “[f]ailure of counsel or of a
party to comply with these Rules or with any order of the
Court may be grounds for imposition by the Court of any and
all sanctions . . . within the inherent power of the
Court.” The Court has the inherent power to control its
docket and may, in the exercise of that power, impose
sanctions where appropriate, including dismissal of the
action. Bautista v. Los Angeles County, 216 F.3d
837, 841 (9th Cir. 2000).
may dismiss an action, with prejudice, based on a
party’s failure to prosecute an action, failure to obey
a court order, or failure to comply with local rules.
See, e.g. Ghazali v. Moran, 46
F.3d 52, 53-54 (9th Cir. 1995) (dismissal for noncompliance
with local rule); Ferdik v. Bonzelet, 963 F.2d 1258,
1260-61 (9th Cir. 1992) (dismissal for failure to comply with
an order to file an amended complaint); Carey v.
King, 856 F.2d 1439, 1440-41 (9th Cir. 1988) (dismissal
for failure to comply with local rule requiring pro se
plaintiffs to keep court apprised of address); Malone v.
United States Postal Serv., 833 F.2d 128, 130 (9th Cir.
1987) (dismissal for failure to comply with court order);
Henderson v. Duncan, 779 F.2d 1421, 1424 (9th Cir.
1986) (dismissal for lack of prosecution and failure to
comply with local rules).
determining whether to dismiss an action for failure to
comply with a pretrial order, the Court must weigh “(1)
the public’s interest in expeditious resolution of
litigation; (2) the court’s need to manage its docket;
(3) the risk of prejudice to the defendants; (4) the public
policy favoring disposition of cases on their merits; and (5)
the availability of less drastic sanctions.” In re
Phenylpropanolamine (PPA) Products Liability Litigation,
460 F.3d 1217, 1226 (9th Cir. 2006) (internal quotations and
citations omitted). These factors guide a court in deciding
what to do, and are not conditions that must be met in order
for a court to take action. Id. (citation omitted).
instance the public’s interest in expeditious
resolution of the litigation and the Court’s need to
manage its docket weigh in favor of dismissal. In re
Phenylpropanolamine, 460 F.3d at 1226. Plaintiff was
ordered to serve the defendant and file a notice within
twenty days or forward documents to the Marshal for service.
Plaintiff does not appear to have complied with the order nor
has she responded to this Court’s order to show cause.
Plaintiff’s failure to comply with the orders of the
Court hinders ...