United States District Court, E.D. California
RAFFIEL A. NORWOOD, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO
DISTRICT JUDGE FINDINGS AND RECOMMENDATIONS TO DISMISS CASE
FOR PLAINTIFF'S FAILURES TO PROSECUTE AND TO COMPLY WITH
COURT ORDER OBJECTIONS, IF ANY, DUE IN FOURTEEN DAYS
Raffiel A. Norwood (“claimant”) proceeds without
counsel in this action appealing defendant's decision
denying his application for Social Security benefits.
Claimant failed to serve the complaint within the time period
required by the scheduling order. See ECF No. 8. The
court therefore ordered claimant to show cause why the case
should not be dismissed for his failure to prosecute. ECF No.
12. In response, claimant requested a ninety-day extension of
time “to acquire legal representation.” ECF No.
11. The court partially granted claimant's request,
ordering him to secure representation or serve the complaint
by May 31, 2019. ECF No. 12.
17, 2019, claimant requested that this case “remain
open” and that the court direct the clerk to resend the
service documents to claimant. ECF No. 13. Considering
claimant's pro se status and in the interests of justice,
the court granted claimant's request. The court ordered
the clerk of court to resend certain documents to claimant.
Id. 2. The court also extended the deadline set in
its previous order for plaintiff to (1) secure representation
or (2) serve the complaint. Id. The court warned
plaintiff that failure to comply with its order would result
in dismissal of this case. Id. Nonetheless,
plaintiff again failed to secure representation or serve the
complaint within the allotted time, thereby disobeying
another court order.
court may dismiss a case for plaintiff's failure to
prosecute or failure to comply with a court order.
See Fed. R. Civ. P. 41(b); Hells Canyon Pres.
Council v. U.S. Forest Serv., 403 F.3d 683, 689 (9th
Cir. 2005). Involuntary dismissal is a harsh penalty, but a
district court has duties to resolve disputes expeditiously
and to avoid needless burden for the parties. See
Fed. R. Civ. P. 1; Pagtalunan v. Galaza, 291 F.3d
639, 642 (9th Cir. 2002).
considering whether to dismiss a case for failure to
prosecute, a court ordinarily considers five factors:
“(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.” Omstead v. Dell, Inc., 594 F.3d
1081, 1084 (9th Cir. 2010) (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir.1986)). These
heuristic factors merely guide the court's inquiry; they
are not conditions precedent for dismissal. See In re
Phenylpropanolamine (PPA) Products Liability Litig., 460
F.3d 1217, 1226 (9th Cir. 2006).
public's interest in expeditious resolution of litigation
always favors dismissal.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (quoting
Yourish v. California Amplifier, 191 F.3d 983, 990
(9th Cir. 1999)). Accordingly, this factor weighs in favor of
to the risk of prejudice, pendency of a lawsuit, on its own,
is not sufficiently prejudicial to warrant dismissal.
Id. (citing Yourish, 191 F.3d at 991). And
here, the court need consider only the record before the
administrative law judge, so there is no risk that delay will
increase the risk that witnesses' memories will fade and
evidence will become stale. See Id. at 643.
Therefore, the third factor weighs against dismissal.
the availability of lesser sanctions, at this stage in the
proceedings there is little available to the court that would
constitute a satisfactory lesser sanction while protecting
the court from further unnecessary expenditure of its scarce
resources. Monetary sanctions are of little use, considering
plaintiffs pursuit of disability benefits, and-given the
nature of these proceedings- the preclusion of evidence or
witnesses is not available. Accordingly, the fourth factor
also weighs in favor of dismissal.
because public policy favors disposition on the merits, this
factor weighs against dismissal. Id.
weighing the factors, including the court's need to
manage its docket, the court finds that dismissal is
appropriate. The court will recommend dismissal without
clerk of court is directed to assign this case to a district
judge, who will preside over this case. The undersigned will
remain as the magistrate judge assigned to the case.
court recommends that the case be dismissed for plaintiffs
failures to prosecute and to comply with court orders. The
undersigned submits these findings and recommendations to the
U.S. district judge presiding over the case under 28 U.S.C.
§ 636(b)(1)(B) and Local Rule 304. Within 14 days of the
service of the findings and recommendations, the parties may
file written objections to the findings and recommendations
with the court and serve a copy on all parties. The document
containing the objections must be captioned “Objections
to Magistrate Judge's Findings and
Recommendations.” The presiding district judge will
then review the findings and recommendations under 28 U.S.C.