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UNITED STATES DISTRICT COURT

8 9 EASTERN DISTRICT OF CALIFORNIA 10 BERNARD LISCANO, Case No. 1:18-cv-00431-BAM 11 Plaintiff, 12 ORDER DISMISSING ACTION FOR v. FAILURE TO OBEY COURT ORDERS 13 AND FAILURE TO PROSECUTE ANDREW M. SAUL,1 Commissioner of 14 Social Security, (Doc. No. 23)

15 Defendant.

16 17 I. Background 18 On March 29, 2018, Plaintiff Bernard Liscano (“Plaintiff”) filed a complaint seeking 19 review of the Commissioner of Social Security’s denial of his social security benefits. (Doc. No. 20 1.)2 On April 25, 2018, this Court entered a scheduling order in this action. (Doc. No. 7.) 21 Pursuant to the Court’s scheduling order, Plaintiff was required to prosecute this action by either 22 seeking voluntary remand or filing a dispositive motion within 95 days from the date of service 23 of the administrative record by Defendant. Plaintiff was warned that failure to comply may result 24 in dismissal of this action for lack of prosecution and failure to comply with court rules and 25 orders. See Local Rule 110.

26 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant 27 in this suit. 2 The parties consented to have a United States Magistrate Judge conduct all proceedings in this case, 1 The administrative record was filed and served on September 6, 2018. (Doc. No. 11.) 2 Plaintiff’s opening brief was therefore due no later than December 10, 2018. However, Plaintiff 3 had not filed his opening brief, and, on January 29, 2019, the Court issued an order to show cause 4 why this action should not be dismissed for failure to comply with the Court’s order and failure 5 to prosecute this action. (Doc. No. 13.) On February 12, 2019, Plaintiff filed a motion seeking 6 a sixty (60) day extension of time to respond to the Court’s order to show cause. (Doc. No. 14.) 7 Plaintiff explained that he was not aware that the administrative record had been filed and he was 8 in the process of seeking legal advice. As the motion appeared to explain why Plaintiff failed to 9 timely file his opening brief, on February 14, 2019, the order to show cause was discharged and 10 Plaintiff was ordered to file his opening brief within sixty (60) days of service of the Court’s 11 order. (Doc. No. 17) 12 On April 15, 2019, Plaintiff filed a motion requesting a further sixty-day extension of time 13 to file his opening brief. (Doc. No. 19.) According to the motion, Plaintiff had been unable to 14 locate an attorney to take his case and he was waiting for an opening with a paralegal agency to 15 assist him in preparing his opening brief. (Id.) Plaintiff further stated that counsel for the 16 Commissioner verbally agreed to a two-month extension of time for Plaintiff to file his opening 17 brief. (Id.) Accordingly, on April 18, 2019, the Court granted Plaintiff’s motion for an extension 18 of time to file his opening brief. (Doc. No. 21.) Plaintiff was ordered to file his opening brief 19 within sixty (60) days of service of the Court’s order. (Id.) On April 19, 2019, Plaintiff was 20 served by mail with a copy of the Court’s order at his last known address. 21 Plaintiff failed to file a timely opening brief and, on July 8, 2018, the Court issued an order 22 to show cause why this action should not be dismissed due to Plaintiff’s failure to obey court 23 orders and failure to prosecute. (Doc. No. 22.) Plaintiff was required to file a written response 24 by July 24, 2019. (Id.) However, Plaintiff was not served with a copy of the Court’s July 8, 25 2019 order and, on July 23, 2019, the Court accordingly issued an amended order to show cause 26 in order to allow Plaintiff an opportunity to respond. (Doc. No. 23.) Plaintiff was served by mail 27 with a copy of the Court’s amended order at his last known address and his written response was 1 would result in the dismissal of this action for failure to obey a court order and failure to 2 prosecute. (Id.) The Court’s amended order has not been returned as undeliverable. Plaintiff 3 has not filed a written response or an opening brief and the time period for doing so has expired. 4 II. Discussion 5 Local Rule 110 provides that “[f]ailure . . . of a party to comply with these Rules or with 6 any order of the Court may be grounds for imposition by the Court of any and all sanctions . . . 7 within the inherent power of the Court.” District courts have the inherent power to control their 8 dockets and “[i]n the exercise of that power they may impose sanctions including, where 9 appropriate, . . . dismissal.” Thompson v. Housing Auth., 782 F.2d 829, 831 (9th Cir. 1986). A 10 court may dismiss an action, with prejudice, based on a party’s failure to prosecute an action, 11 failure to obey a court order, or failure to comply with local rules. See, e.g., Ghazali v. Moran, 12 46 F.3d 52, 53–54 (9th Cir. 1995) (dismissal for noncompliance with local rule); Ferdik v. 13 Bonzelet, 963 F.2d 1258, 1260–61 (9th Cir. 1992) (dismissal for failure to comply with an order 14 requiring amendment of complaint); Malone v. U.S. Postal Serv., 833 F.2d 128, 130–33 (9th Cir. 15 1987) (dismissal for failure to comply with court order). 16 In determining whether to dismiss an action, the Court must consider several factors: 17 (1) the public’s interest in expeditious resolution of litigation; (2) the Court’s need to manage its 18 docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of 19 cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 20 779 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988); see 21 also In re Phenylpropanolamine (PPA) Prods. Liab. Litig., 460 F.3d 1217, 1226 (9th Cir. 2006) 22 (standards governing dismissal for failure to comply with court orders). These factors guide a 23 court in deciding what to do and are not conditions that must be met in order for a court to take 24 action. In re PPA, 460 F.3d at 1226 (citation omitted). 25 The Court finds that the public’s interest in expeditious resolution of litigation and the 26 Court’s need to manage its docket weigh in favor of dismissal. Here, the action has been pending 27 since March 29, 2018, and Plaintiff has not filed an opening brief, communicated with the Court 1 can proceed no further without Plaintiff’s cooperation and compliance with the Court’s order. 2 Moreover, the matter cannot simply remain idle on the Court’s docket, unprosecuted, awaiting 3 Plaintiff’s compliance. 4 The third factor, risk of prejudice to defendant, also weighs in favor of dismissal, as a 5 presumption of injury arises from any unreasonable delay in prosecuting an action. In re PPA, 6 460 F.3d at 1227–28; Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976); Anderson v. Air 7 West, 542 F.2d 522, 524 (9th Cir. 1976). The fourth factor usually weighs against dismissal 8 because public policy favors disposition on the merits. Pagtalunan v. Galaza, 291 F.3d 639, 643 9 (9th Cir. 2002). However, “this factor lends little support to a party whose responsibility it is to 10 move a case toward disposition on the merits but whose conduct impedes progress in that 11 direction,” which is the case here. In re PPA, 460 F.3d at 1228. 12 Finally, the Court’s warning to a party that failure to obey the Court’s order will result in 13 dismissal satisfies the “considerations of the alternatives” requirement. Ferdik, 963 F.2d at 1262; 14 Malone, 833 at 132–33; Henderson, 779 F.2d at 1424. The Court’s April 18, 2019 order granting 15 Plaintiff an extension of time to file his opening brief warned Plaintiff that his failure to file a 16 timely opening brief would result in dismissal of this action with prejudice. (Doc. No. 21.) The 17 Court’s July 23, 2019 order to show cause further warned Plaintiff that his failure to respond to 18 the order to show cause by August 16, 2019, would result in dismissal of this action with 19 prejudice. (Doc. No. 23.) Thus, Plaintiff had adequate warning that dismissal would result from 20 his noncompliance. Additionally, at this stage in the proceedings there is little available to the 21 Court which would constitute a satisfactory lesser sanction while protecting the Court from 22 further unnecessary expenditure of its scarce resources. Monetary sanctions or the preclusion of 23 evidence or witnesses is likely to have no effect given that Plaintiff has ceased litigating his case. 24 /// 25 /// 26 /// 27 /// 1 /// 2 III. Conclusion and Order 3 Based on the foregoing, it is HEREBY ORDERED that this action be dismissed with 4 prejudice based on Plaintiff’s failure to prosecute this action and for failure to obey court orders. 5 The Clerk of Court is directed to close this case. 6

IT IS SO ORDERED.

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8 Dated: August 26, 2019 /s/ Barbara A. McAuliffe _

UNITED STATES MAGISTRATE JUDGE

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