United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
Jeffrey H. brings this action pursuant to the Social Security
Act (the “Act”), 42 U.S.C. § 405(g), to
obtain judicial review of a final decision of the
Commissioner of Social Security (the
“Commissioner”). The Commissioner denied
plaintiff Supplemental Security Income (“SSI”)
and Disability Insurance Benefits (“DIB”) under
Title II and XVI of the Act. 42 U.S.C. §§ 401
et seq., 1381 et seq. On April 3, 2019, the
Court issued plaintiff an Order to Show Cause why it should
not dismiss this action for plaintiff's failure to
prosecute and to comply with the Court's Scheduling
Order. (Docket No. 20). Plaintiff did not respond to the
Order to Show Cause by the May 3, 2019, deadline.
following reasons, the Court DISMISSES this action, without
prejudice, for plaintiff's failure to prosecute or to
comply with the Court's Orders.
filed his initial Complaint in the U.S. District Court for
the District of Idaho on July 27, 2017, at that time
represented by counsel. (Docket No. 1). On January 9, 2018,
this matter was transferred to this District Court. (Docket
Nos. 12, 13). The Commissioner filed her Answer and the
Transcript of Record on January 26, 2018. (Docket Nos. 15,
16). Plaintiff's opening brief was due March 27, 2018,
but he has not filed one. Id. On November 20, 2018,
plaintiff's counsel moved to withdraw (Docket Nos. 17,
18), which the Court granted on January 18, 2019, ordering
plaintiff to file a status report within thirty days (Docket
No. 19). Plaintiff failed to file a status report. On April
3, 2019, the Court issued plaintiff an Order to Show Cause
why it should not dismiss this case for failure to prosecute
and to comply with the Court's January 18, 2019,
Scheduling Order. (Docket No. 20). The Court gave plaintiff a
deadline to respond of May 3, 2019. The Court advised,
“If no response is filed, the case will be dismissed
without prejudice.” Id. Plaintiff failed to
respond to the Order to Show Cause. Plaintiff has taken no
action in this case since the Motion to Withdraw of November
20, 2018. (Docket Nos.
courts possess the undisputed authority to control their
dockets and dismiss a case that a plaintiff fails to
prosecute. See Link v. Wabash R.R. Co., 370 U.S.
626, 630 (1962). Fed.R.Civ.P. Rule 41(b) allows for dismissal
of an action for failure to prosecute. A dismissal for
failure to prosecute may be ordered by the Court upon motion
by an adverse party, or upon the Court's own motion.
See Ash v. Cvetkov, 739 F.2d 493, 495 (9th Cir.
1984). “[D]ismissal for failure to prosecute is
particularly appropriate when such a failure is coupled with
disobedience to court orders or a disregard of established
rules.” Gierloff v. Ocwen, No.
6:15-cv-01311-MC, 2017 WL 815118, at *1 (D. Or. Mar. 1, 2017)
determining whether to dismiss for failure to prosecute or
comply with a court order, the court weighs 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
defendants/respondents; (4) the availability of less drastic
alternatives; and (5) the public policy favoring disposition
of cases on their merits.” Pagtalunan v.
Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
commenced this action almost two years ago. Plaintiff appears
to have taken no action in this matter in over seven months.
Plaintiff failed to respond to the Court's Scheduling
Order and Order to Show Cause. This failure to prosecute and
to comply with the Court's Orders are sufficient grounds
to dismiss this action. See Townsel v. Contra Costa Cty.,
Cal., 820 F.2d 319, 321 (9th Cir. 1987); W. Coast
Theater Corp. v. City of Portland, 897 F.2d 1519, 1524
(9th Cir. 1990); Ghazali v. Moran, 46 F.3d 52, 54
(9th Cir. 1995); Fed.R.Civ.P. Rule 41(b). The five-factor
test also strongly favors dismissal:
Expeditious resolution: “[T]he public's
interest in expeditious resolution of litigation always
favors dismissal.” Yourish v. Cal. Amplifier,
191 F.3d 983, 990 (9th Cir. 1999). Plaintiff has taken no
action in over seven months, and did not respond to the Order
to Show Cause. This favors dismissal.
Docket management: “It is incumbent upon the
Court to manage its docket without being subject to routine
noncompliance of litigants such as” plaintiff.
Pagtalunan, 291 F.3d at 642. Plaintiff has not
complied with the applicable scheduling rules or the
Court's Order to Show Cause. This favors dismissal.
3.Prejudice to defendants: Plaintiff has
“offered no clear explanations of what actions he . . .
took during the relevant time period.”
Pagtalunan, 291 F.3d at 643. Plaintiff's
“delay was ...