Koufos v. Manasrah et al
Filing
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FINDINGS and RECOMMENDATIONS Dismissing the Case for Failure to Prosecute, signed by Magistrate Judge Jennifer L. Thurston on 5/22/2013, referred to Judge Ishii. Objections to F&R Due Within Thirty Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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NICHOLAS KOUFOS,
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Plaintiff,
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v.
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A. MANASRAH,
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Defendants.
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Case No.: 1:10-cv-02412 –AWI- JLT (PC)
FINDINGS AND RECOMMENDATIONS
DISMISSING THE CASE FOR FAILURE TO
PROSECUTE
(Doc. 13).
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Plaintiff Nicholas Koufos (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On March 26, 2013, as is required,
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the Court screened Plaintiff’s first amended complaint. (Doc. 13). The Court ordered Plaintiff to
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either notify the Court of his willingness to proceed on his cognizable claims or to file a second
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amended complaint. (Doc. 13). Plaintiff was given 30 days in which to comply with the Court’s order.
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Id. As Plaintiff failed to comply with the March 26, 2013, order, on May 3, 2013, the Court mandated
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that Plaintiff show cause within 14 days as to why the matter should not be dismissed. (Doc. 14).
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More than 14 days have passed since the service of the May 3, 2013, order and Plaintiff has failed to
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file his second amended complaint or otherwise comply with the Court’s order.
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In determining whether to dismiss an action for lack of prosecution, the court must consider
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several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to
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manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition
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of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779
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F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). The public’s interest in
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expeditiously resolving this litigation and the Court’s interest in managing its docket weigh in favor of
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dismissal, as this case has been pending since December 30, 2010. (Doc. 1). This case cannot be held
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in abeyance indefinitely based on Plaintiff’s continuous failure to comply with the Court’s orders.
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The risk of prejudice to Defendants also weighs in favor of dismissal, since a presumption of
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injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air
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West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the factors in favor of dismissal discussed above
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greatly outweigh the public policy favoring disposition of cases on their merits. Finally, no lesser
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sanction is feasible given the Court’s inability to communicate with Plaintiff based on Plaintiff’s
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failure to comply with the Court’s orders.
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DISMISSED without prejudice for failure to prosecute.
Therefore, it is recommended that this matter be
FINDINGDS AND RECOMMENDATIONS
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Accordingly, the Magistrate Judge HEREBY RECOMMENDS as follows:
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1. That this action be DISMISSED without prejudice for Plaintiff's failure to
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prosecute; and
2. That these findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days
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after being served with these findings and recommendations, any party may file written objections
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with the court and serve a copy on all parties. Such a document should be captioned "Objections to
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Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and
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filed within ten days after service of the objections. The parties are advised that failure to file
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objections within the specified time may waive the right to appeal the District Court's order. Martinez
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v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
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Dated:
May 22, 2013
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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