(PC) Kopp v. A. et al

Filing 53

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dennis M. Cota on 6/3/2024 RECOMMENDING that this Action be dismissed without prejudice. Referred to Judge Troy L. Nunley. Objections due within 14 days after being served with these Findings and Recommendations. (Kyono, V)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON CHARLES KOPP,

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Plaintiff,

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v.

No. 2:22-CV-0282-TLN-DMC-P

FINDINGS AND RECOMMENDATIONS

THOMAS A.,

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Defendant.

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Plaintiff, who is proceeding pro se, brings this civil rights action pursuant to 42

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U.S.C. § 1983.
On June 6, 2023, the Court directed Plaintiff to show cause why this action should

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not be dismissed for failure to prosecute by way of default proceedings against the only remaining

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defendant, Thomas A., who has waived service but not responded to the complaint. See ECF No.

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43. As of July 24, 2023, Plaintiff had not complied, and the Court issued findings and

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recommendations that this case be dismissed for lack of prosecution. See ECF No. 47.

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Plaintiff filed objections on August 17, 2023. See ECF No. 48. On January 23,

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2024, the Court vacated the July 24, 2023, findings and recommendations and granted Plaintiff

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additional time to initiate default proceedings. See ECF No. 50. Specifically, Plaintiff was

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directed to initiate default proceedings within 30 days of the January 23, 2024, order. See id.

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Plaintiff filed a notice of change of address on March 26, 2024, and the January 23, 2024, order
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was re-served on Plaintiff at his new address. To date, more than 30 days have elapsed since the

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order was re-served on Plaintiff on March 26, 2024, and Plaintiff has not complied by initiating

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default proceedings against Defendant Thomas A.

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The Court must weigh five factors before imposing the harsh sanction of dismissal.

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See Bautista v. Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000); Malone v. U.S. Postal

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Service, 833 F.2d 128, 130 (9th Cir. 1987). Those factors are: (1) the public's interest in

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expeditious resolution of litigation; (2) the court's need to manage its own docket; (3) the risk of

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prejudice to opposing parties; (4) the public policy favoring disposition of cases on their merits;

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and (5) the availability of less drastic sanctions. See id.; see also Ghazali v. Moran, 46 F.3d 52,

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53 (9th Cir. 1995) (per curiam). A warning that the action may be dismissed as an appropriate

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sanction is considered a less drastic alternative sufficient to satisfy the last factor. See Malone,

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833 F.2d at 132-33 & n.1. The sanction of dismissal for lack of prosecution is appropriate where

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there has been unreasonable delay. See Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir.

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1986). Dismissal has also been held to be an appropriate sanction for failure to comply with an

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order to file an amended complaint. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.

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1992).

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Having considered these factors, and in light of Plaintiff’s failure to respond to the

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Court’s order to show cause or prosecute this case, dismissal of this action is appropriate.

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Based on the foregoing, the undersigned recommends that this action be dismissed,
without prejudice, for lack of prosecution and failure to comply with court rules and orders.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

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after being served with these findings and recommendations, any party may file written

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objections with the court. Responses to objections shall be filed within 14 days after service of

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objections. Failure to file objections within the specified time may waive the right to appeal. See

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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 3, 2024

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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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