Case 2:22-cv-04941-MCS-ADS Document 11 Filed 02/21/23 Page 1 of 4 Page ID #:42

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 DAVID J., an Individual, Case No.: 2:22-04941-MCS (ADS)

12 Plaintiff,

13 v. ORDER DISMISSING CASE FOR

FAILURE TO PROSECUTE AND

14 KILOLO KIJAKAZI, Acting Commissioner COMPLY WITH COURT ORDERS of Social Security, et al., 15 Defendants. 16

17 18 I. INTRODUCTION 19 Pro se Plaintiff David J.1 (“Plaintiff”) filed this civil lawsuit seeking review of a 20 decision of the Commissioner of Social Security denying Plaintiff’s application for 21 disability benefits. Plaintiff filed his Complaint on July 18, 2022. Since that date, 22

23 1 Plaintiff’s name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 24 Administration and Case Management of the Judicial Conference of the United States.

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1 Plaintiff has been given several opportunities to move forward with his lawsuit and has 2 continuously failed to do so. As such, this case is dismissed in its entirety for failure to 3 prosecute and comply with Court orders pursuant to Federal Rule of Civil Procedure 4 41(b). 5 II. PROCEDURAL HISTORY 6 Plaintiff filed his Complaint against Andrew Saul on July 18, 2022. 7 (Docket “Dkt.” No. 1.) The Court denied Plaintiff’s initial In Forma Pauperis (“IFP”)

8 request and ordered Plaintiff to file an amended complaint to establish subject matter 9 jurisdiction. (Dkt. No. 4.) In response, Plaintiff filed a First Amended Complaint 10 against Defendant Kilolo Kijakazi, Acting Commissioner of the Social Security 11 Administration (“Defendant”) on August 8, 2022. (Dkt. No. 5.) On August 12, 2022 the 12 Court issued an Order to Show Cause as to why this case should not be dismissed for 13 failure to state a claim, as the First Amended Complaint failed to cure the deficiencies 14 regarding subject matter jurisdiction. (Dkt. No. 6.) Plaintiff did not respond to the 15 August 12, 2022 Order to Show Cause. On October 26, 2022, the Court, on its own 16 motion, vacated its initial order denying Plaintiff’s IFP application, and granted Plaintiff 17 IFP status. (Dkt. No. 7.) 18 The Court then issued a Case Management Order (“CMO”) in this case.

19 (Dkt. No. 9.) The CMO required Plaintiff to file a proper proof of service by 20 November 25, 2022. (Id. at 2.) Plaintiff did not do so. On January 31, 2023, the Court 21 issued an Order to Show Cause for Failure to Prosecute requiring Plaintiff to explain 22 why this case should not be dismissed for failure to prosecute. (Dkt. No. 10.) Plaintiff 23 was ordered to respond by no later than February 14, 2023. Finally, Plaintiff was 24 advised:

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1 Failure to timely file a response to this OSC with the Court, as directed above, may result in this action being dismissed for failure to prosecute 2 and obey Court orders pursuant to Federal Rule of Civil Procedure 41(b). 3

4 (Id. at 2.) Plaintiff has failed to file any response to the January 31, 2023 Order. 5 III. DISMISSAL UNDER RULE 41(b) 6 The Court’s Order to Show Cause expressly cautioned Plaintiff that failure to 7 respond would result in a recommendation that the action be dismissed under Federal 8 Rule of Civil Procedure 41(b). (Dkt. No. 10.) Plaintiff did not respond to the Order. The 9 failure to comply with the CMO and the failure to respond to two Orders to Show Cause 10 reflect a lack of prosecution of the case. See Link v. Wabash R.R., 370 U.S. 626, 629–30 11 (1962); see also Fed. R. Civ. P. 41(b). Plaintiff’s failure to respond also demonstrates a 12 failure to comply with Court orders. 13 In Carey v. King, 856 F.2d 1439 (9th Cir. 1988), the Ninth Circuit cited the 14 following factors as relevant to the Court’s determination of whether to dismiss an 15 action for failure to prosecute: “(1) the public’s interest in expeditious resolution of 16 litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the 17 defendants; (4) the public policy favoring disposition of cases on their merits, and 18 (5) the availability of less drastic sanctions.” Id. at 1440. 19 Upon consideration of the five Carey factors, the Court finds that Plaintiff's 20 failure to prosecute this case and to comply with the Court’s orders warrant dismissal. 21 The first two Carey factors—the public's interest in expeditiously resolving this litigation 22 and the Court's interest in managing the docket—weigh in favor of dismissal. The Court 23 cannot hold this case in abeyance indefinitely awaiting Plaintiff's response to the Court's 24 directive and to file a proof of service of having properly served the summons and

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1 |Complaint on the government. Additionally, Plaintiff has not taken any action in this 2 || case since August 8, 2022 and has ignored three separate Court orders. The third factor 3 || risk of prejudice to Defendant, also weighs in favor of dismissal since a presumption of 4 ||injury arises from the occurrence of unreasonable delay in prosecuting an action. 5 || Anderson v. Air West, Inc., 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor, the 6 || public policy favoring disposition of cases on their merits, is greatly outweighed by the 7 || factors in favor of dismissal. Finally, Plaintiff has already been cautioned of the 8 || consequences of failure to prosecute and ordered to show cause why the action should 9 ||not be dismissed. No sanction lesser than dismissal is feasible here. Thus, dismissal of 10 || this action is warranted under Federal Rule of Civil Procedure 41(b). 11 ||}IV. CONCLUSION 12 IT IS THEREFORE ORDERED that this action is dismissed pursuant to Federal 13 || Rule of Civil Procedure 41(b). 14 15 IT ISSO ORDERED. 16 17 || Dated: February 21, 2023 Mab L, Soares 19 THE HONORABLE MARK C. SCARSI United States District Judge 20 °t Presented by: 22 23 /s/ Autumn D. Spaeth

THE HONORABLE AUTUMN D. SPAETH

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