Case 8:21-cv-00526-MWF-MRW Document 12 Filed 02/22/22 Page 1 of 4 Page ID #:1313

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2 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. SA CV 21-526 MWF (MRW) 13 REUBEN S.,1 ORDER DISMISSING ACTION 14 Plaintiff, WITHOUT PREJUDICE 15 v. FRCP 41 16 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 17 Defendant. 18

19 The Court dismisses the action without prejudice for failure to 20 prosecute and for failure to respond to Court orders. 21 * * * 22 1. This is an action for review of the denial of Social Security 23 disability benefits. Pursuant to general order of the Court, the action was 24 25

26 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5(c)(2)(B) and the recommendation of the Committee on Court 27 Administration and Case Management of the Judicial Conference of the United States. 28 Case 8:21-cv-00526-MWF-MRW Document 12 Filed 02/22/22 Page 2 of 4 Page ID #:1314

1 referred to Magistrate Judge Wilner for consideration of preliminary 2 matters and further proceedings. (Docket # 4.) 3 2. Plaintiff is a pro se litigant. According to Judge Wilner’s pro se 4 procedural order (Docket # 6), Plaintiff was required to submit to the Court 5 a legal memorandum stating his legal reasons for review of the agency’s 6 decision within 35 days from the agency’s service of the answer and 7 administrative record in the action. 8 3. The government filed those items with the Court on 9 September 21, 2021. Plaintiff’s memorandum therefore was due by or 10 before October 26. The Court’s docket indicates that Plaintiff failed to file 11 anything in support of his request for review. 12 4. Judge Wilner subsequently issued an order to show cause why 13 the case should not be dismissed. (Docket # 11.) The order directed 14 Plaintiff to respond to the OSC and file his substantive brief by or before 15 January 28, 2022. Plaintiff was expressly informed that failure to act 16 would result in a recommendation under Rule 41 that the matter be 17 dismissed for failure to prosecute or obey court orders. The order also cited 18 the Ninth Circuit’s opinion in Applied Underwriters, Inc. v. Lichtenegger, 19

(9th Cir. 2019), regarding dismissal of civil actions. 20 5. To date, Plaintiff has not responded to the Court’s OSC nor has 21 he filed a substantive brief explaining his allegations of error against the 22 agency. 23 * * * 24 6. Rule 41(b) provides that if a plaintiff “fails to prosecute or to 25 comply with these rules or a court order, a defendant may move to dismiss 26 the action or any claim against it.” Dismissal also may be ordered by the 27 Court. Link v. Wabash R.R.,

(1962). 28 2 Case 8:21-cv-00526-MWF-MRW Document 12 Filed 02/22/22 Page 3 of 4 Page ID #:1315

1 7. Rule 41(b) applies when a court “mandate[s]” a specific action 2 and “indicate[s] that failure to do so would result in dismissal” under the 3 rule. Applied Underwriters,

. 4 8. A district court must consider a variety of factors before 5 dismissing an action under Rule 41(b). They are: the public’s interest in 6 the expeditious resolution of litigation; the court’s need to manage its 7 docket; the risk of prejudice to defendants; the public policy favoring 8 disposition of cases on their merits; and the availability of less drastic 9 alternatives to dismissal. Omstead v. Dell, Inc.,

(9th 10 Cir. 2010); Yourish v. Cal. Amplifier,

, 986 (9th Cir. 1999). 11 9. In the present action, dismissal is appropriate. Plaintiff has 12 not meaningfully participated in the action since its commencement. He 13 did not comply with the original scheduling order governing the case. 14 Plaintiff also did not respond to the magistrate judge’s order that sought to 15 advance the case. That order expressly advised Plaintiff that he risked 16 dismissal for failing to act. Plaintiff’s failure to respond to the Court’s 17 orders demonstrates that he does not have interest in advancing the action. 18 10. By contrast, the Court, the defense, and the public have a 19 strong interest in terminating the case. This is particularly true given that 20 Plaintiff effectively abandoned the action by not responding to the Court’s 21 order or serving the government with his memorandum stating his reasons 22 for requesting review of the agency’s decision. Furthermore, because 23 Plaintiff is a pro se litigant who has not abided by the Court’s recent 24 orders, no sanction short of dismissal will be effective in moving this case 25 forward. Omstead,

. 26 11. The Court finds that dismissal is appropriate under Rule 41(b) 27 and Local Rule 41-6. Applied Underwriters,

. 28 3 Case 8:21-cv-00526-MWF-MRW Document 12 Filed 02/22/22 Page 4of4 Page ID #:1316

1 Therefore, the action is hereby DISMISSED without prejudice. 2 IT IS SO ORDERED.

4 || Dated: February 22, 2022 5 MICHAEL W. FITZG D 6 UNITED STATES DISTRICT JUDGE

7 Presented by: it 10 i1 HON. MICHAEL R. WILNER UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28