United States District Court, W.D. Washington
DANIEL R. GOODMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER TO DISMISS FOR LACK OF PROSECUTION
Richard Creatura United States Magistrate Judge.
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).
matter is before the Court on this Court's Order to Show
Cause, dated and mailed on January 24, 2017, why this matter
should not be dismissed for failure to follow the Court's
Scheduling Order. See Dkt. 19. Plaintiff was again
provided direction on what to include in his opening brief
and ordered either to file his opening brief or provide an
explanation to the Court why he was not able to file his
brief. Id. Plaintiff has failed to file anything in
response to this Court's Order. For this reason, this
action shall be dismissed without prejudice.
Daniel Goodman, proceeding pro se filed his
complaint in June, 2016. See Dkts. 1,
Because plaintiff is proceeding pro se and was
granted in forma pauperis status (Dkt. 4), the Court
directed service of the summons and complaint. Dkt. 6.
Following two motions for extensions to file the 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. This Order directed plaintiff to
file an opening brief on or before December 21, 2016.
Plaintiff neither filed an opening brief nor asked the Court
for more time to do so. This Court issued and mailed to
plaintiff an Order to Show Cause on January 24, 2017. Dkt.
19. This Order stated in part:
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:
(1) 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.
(2) If 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 this explanation to the Court no later than
February 24, 2017.
(3) If plaintiff files an opening brief or explains why he
failed to follow the scheduling order, the Acting
Commissioner shall file a response by March 24, 2017.
(4) If plaintiff does not file an opening brief or does not
explain why he failed to follow the scheduling order, the
case shall be dismissed.
(5) The Clerk is directed to mail a copy of this Order to
plaintiff at the last known address.
Court was not willing to risk dismissal of an action before
consideration of the merits when “other less drastic
alternatives [we]re  available, ” in part, due to
plaintiff's pro se status. See Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (citing
Nevijel v. North Coast Life Ins. Co.,651 F.2d 671, 674
(1981)). The Court provided notice to plaintiff that this
matter would be dismissed for lack of prosecution if
plaintiff failed to follow the Court's order and file an
opening brief. Dkt. 19. Plaintiff has not filed anything