Opinion
Case No. 19cv2441-MMA-AGS
06-30-2020
AHMAD RASHAD DENMAN, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE;
[Doc. No. 11]
DISMISSING APPEAL WITHOUT PREJUDICE FOR FAILURE TO PROSECUTE
On October 30, 2019, Plaintiff Ahmad Rashad Denman, proceeding pro se, filed an action in the small claims division of the Superior Court of California, County of San Diego, challenging the denial of an application for supplemental security income and social security disability insurance benefits. See Doc. No. 1, Ex. 1. On December 19, 2019, Defendant Andrew Saul, sued in his official capacity as the Commissioner of the Social Security Administration, appropriately removed the action to this Court. See Doc. No. 1. On February 18, 2020, Defendant answered Plaintiff's complaint by lodging the administrative record of proceedings before the Social Security Administration. See Doc. No. 8; CIVLR 7.1.e.6.d. Accordingly, Plaintiff's merits brief in support of his appeal was due within 35 days thereafter, on or before March 24, 2020. See CIVLR 7.1.e.6.e.1.
Plaintiff failed to file a merits brief or otherwise appear to prosecute this appeal. United States Magistrate Judge Andrew G. Schopler twice ordered Plaintiff to show cause why this appeal should not be dismissed for failure to prosecute. See Doc. Nos. 9, 10. To date, Plaintiff has failed to respond to the Court's orders.
All matters arising in this social security appeal are properly referred to the assigned magistrate judge for report and recommendation pursuant to statute and this District's Civil Local Rules. See 28 U.S.C. § 636(b)(1)(B); CIVLR 72.1.
Judge Schopler has issued a thorough and well-reasoned Report recommending that the Court dismiss this appeal based on Plaintiff's failure to prosecute the action. See Doc. No. 11. Neither party objected to the Report and Recommendation. The time for filing objections has expired. See id. at 4.
When no objections are filed, the district court need not review the Report and Recommendation de novo. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir. 2003) (en banc). A district judge may nevertheless "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1); see also Wilkins v. Ramirez, 455 F. Supp. 2d 1080, 1088 (S.D. Cal. 2006).
The Court has made a review and determination in accordance with the requirements of 28 U.S.C. § 636 and applicable case law. Upon due consideration, the Court ADOPTS Judge Schopler's Report and Recommendation and DISMISSES this appeal without prejudice for the reasons stated therein and pursuant to Civil Local Rule 41.1. See CivLR 41.1.b ("Failure to comply with the provisions of the local rules of this court may also be grounds for dismissal . . .."); see also Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir. 1986) (pro se parties are not excused from knowing the rules of the court). The Court DIRECTS the Clerk of Court to enter judgment accordingly and terminate the action.
The Court notes that Judge Schopler recommends this action be dismissed with prejudice. See Doc. No. 11 at 4. The Court finds that dismissal without prejudice is more appropriate under the circumstances and therefore declines to adopt that aspect of the Report and Recommendation. See, e.g., Ash v. Cvetkov, 739 F.2d 493, 496-97 (9th Cir. 1984) (noting that dismissal without prejudice is a more easily justified sanction for lack of prosecution). The Court otherwise adopts the Report and Recommendation in its entirety.
IT IS SO ORDERED. DATE: June 30, 2020
/s/_________
HON. MICHAEL M. ANELLO
United States District Judge