United States District Court, W.D. Washington
DANIEL R. GOODMAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
ORDER TO SHOW CAUSE
Richard Creatura United States Magistrate Judge
This Court has jurisdiction pursuant to 28 U.S.C. §
636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR
13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 8; Consent to Proceed
Before a United States Magistrate Judge, Dkt. 10).
case is before the Court on plaintiff's failure to
respond to the Court's Scheduling Order (Dkt. 18), dated
and mailed to plaintiff on November 15, 2016. This Order
directed plaintiff to file an opening brief on or before
December 21, 2016. Plaintiff has neither filed an opening
brief nor asked the Court for more time to do so.
Daniel Goodman, proceeding pro se (Dkt. 4) filed his
complaint in July, 2016 (Dkt. 5). Because plaintiff is
proceeding pro se and was granted in forma
pauperis status, the Court directed service of the
summons and complaint (Dkt. 6). Following two motions for
extensions to file their answer (Dkt.11-16), the Acting
Commissioner filed the Answer/Administrative Record on
November 14, 2016 (Dkt. 17). The Scheduling Order was filed
and mailed to plaintiff on November 15, 2016 (Dkt. 18).
Scheduling Order provides in pertinent part:
(1) Plaintiff's Opening Brief
(a) Beginning on page one, plaintiff shall list the errors
alleged (for example, “Issue No. 1 - The ALJ failed to
properly evaluate plaintiff's subjective complaints of
pain.”), followed by a clear statement of the relief
requested. A general statement of an issue, such as
“the ALJ's decision to deny benefits is not
supported by substantial evidence, ” is unacceptable.
Assignments of error that are not listed in this section of
the opening brief will not be considered or ruled upon.
(b) Plaintiff shall provide a brief summary of the relevant
procedural history of the case. Plaintiff shall not include a
lengthy recitation of background facts or medical evidence in
this section. Discussion of the relevant facts must be
presented in the argument section in the context of the
specific errors alleged.
(c) Subsequent sections of the opening brief must fully
explain each issue raised in the assignments of error and
must include citations to the specific pages of the
administrative record and the relevant legal authority that
support each argument and request for relief.
appealed the denial of his Social Security applications by
filing this lawsuit and thus has the responsibility to
explain to the Court (1) what the ALJ did wrong, (2) what
evidence supports his position, and (3) why the ALJ's
error was harmful, i.e., why it affected the outcome
of the case. This responsibility is met by filing an opening
brief. The opening brief is important because it informs
everyone of the specific claims plaintiff wishes the Court to
address, and gives the Acting Commissioner an opportunity to
respond. Without an opening brief the Court would have to
guess at what claims plaintiff intends to present.
Additionally, the Court cannot act as the lawyer for either
side, that is, the Court cannot make arguments on behalf of a
party and cannot decide the case based on issues that the
parties have not raised.
after plaintiff and the Commissioner file their briefs, will
the Court be in a position to review the arguments made by
both sides and issue a decision. In this case,
plaintiff's failure to file an opening brief not only
deprives the Court of knowing what claims he wishes the Court
to review, it also violates the Court's Scheduling Order.
If the Court finds that plaintiff failed to file his brief
without just cause, the Court could dismiss the case. Local
Civil Rule 11(c); see, also Fed. R. Civ. P. 41(b).
Given the circumstances in this case, however, the Court
would prefer to decide the case on the merits and does not
deem the drastic measure of dismissal appropriate at this
Court therefore ORDERS:
Daniel Goodman, plaintiff, must submit to the Court by
February 24, 2017 an opening brief explaining what the ALJ
did wrong, with citations to the Administrative Record, what
evidence supports plaintiff's position, and why the
ALJ's error was harmful, and also must follow the
requirements noted in the Scheduling Order (see Dkt.
plaintiff does not file or cannot file an opening brief, he
must explain why the case should not be dismissed for failing
to follow the Court's scheduling order. He must submit