Opinion
2:20-cv-2196-KJN PS
09-27-2021
EMILIO J. CASTELLANOS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER TO SHOW CAUSE
KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE
On August 5, 2021, the Commissioner of the Social Security Administration filed the administrative transcript for this case, along with an answer to plaintiff’s complaint regarding the denial of disability benefits. (ECF Nos. 11, 12.) On August 9, 2021, the court lifted the stay previously in place under General Order No. 615 and issued the scheduling order setting the parties’ briefing deadlines. (ECF No. 13.) Plaintiff’s motion for summary judgment was due within 45 days of the scheduling order’s issuance, which was September 23, 2021. (Id. at 1.) However, plaintiff has filed neither a motion for summary judgment, nor a request for an extension of time. Because the case cannot proceed until plaintiff files his motion, the court issues this order to show cause why the case should not be dismissed for failure to prosecute.
Plaintiff is representing himself in this social security case, and the action was referred to the undersigned pursuant to 28 U.S.C. § 636 and Local Rule 302(c)(15) & (21). Both parties consent to proceed before a United States Magistrate Judge for all purposes. (ECF Nos. 9, 15.)
Although noncompliance with the court’s order would support dismissal outright, in light of plaintiff’s self-represented status and the court’s desire to resolve the action on the merits, the court first attempts lesser sanctions by issuing this order to show cause. Plaintiff’s filing of a motion for summary judgment within 14 days (or a timely request for a greater extension of time) will satisfy this order to show cause.
For plaintiff’s benefit, the undersigned reiterates the required components of a motion for summary judgment in a social security case. Plaintiff’s opening brief shall contain the following:
(a) A description of the plaintiff’s alleged physical or emotional impairments, including when the plaintiff contends the impairments became disabling, and how these impairments disable the plaintiff from work;
(b) A summary of all relevant medical evidence presented to the Commissioner at the administrative level, including an explanation of the significance of clinical and laboratory findings and the purpose and effect of prescribed medication and therapy;
(c) A summary of the relevant testimony at the administrative hearing;
(d) A recitation of the Commissioner’s findings and conclusions relevant to the plaintiff’s claims;
(e) A short, separate statement of each of the plaintiff’s legal claims stated in terms of the insufficiency of the evidence to support findings of fact or reliance upon an erroneous legal standard; and
(f) Argument separately addressing each claimed error. Argument in support of each claim of error must be supported by citation to legal authority and explanation of the application of such authority to the facts of the particular case.
All references to the record and all assertion of fact must be accompanied by citations to the administrative transcript.
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff shall show cause in writing why this action should not be dismissed with prejudice pursuant to Federal Rule of Civil Procedure 41(b) based on plaintiffs failure to comply with the court’s order and failure to prosecute this case;
2. Within 14 days of the date of this order, plaintiff shall file either:
a. A motion for summary judgment with an opening brief in support, in compliance with this order, or
b. A request for a further extension of time, showing good cause for the request; and
3. Failure to respond to this order to show cause by the required deadline will result in dismissal of the action pursuant to Federal Rule of Civil Procedure 41(b).