(PC) Koufos v. Manasrah et al, No. 1:2010cv02412 - Document 15 (E.D. Cal. 2013)

Court Description: 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)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 NICHOLAS KOUFOS, 12 Plaintiff, 13 v. 14 A. MANASRAH, 15 16 Defendants. ) ) ) ) ) ) ) ) ) ) Case No.: 1:10-cv-02412 –AWI- JLT (PC) FINDINGS AND RECOMMENDATIONS DISMISSING THE CASE FOR FAILURE TO PROSECUTE (Doc. 13). 17 Plaintiff Nicholas Koufos (“Plaintiff”) is a state prisoner proceeding pro se and in forma 18 pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On March 26, 2013, as is required, 19 the Court screened Plaintiff’s first amended complaint. (Doc. 13). The Court ordered Plaintiff to 20 either notify the Court of his willingness to proceed on his cognizable claims or to file a second 21 amended complaint. (Doc. 13). Plaintiff was given 30 days in which to comply with the Court’s order. 22 Id. As Plaintiff failed to comply with the March 26, 2013, order, on May 3, 2013, the Court mandated 23 that Plaintiff show cause within 14 days as to why the matter should not be dismissed. (Doc. 14). 24 More than 14 days have passed since the service of the May 3, 2013, order and Plaintiff has failed to 25 file his second amended complaint or otherwise comply with the Court’s order. 26 In determining whether to dismiss an action for lack of prosecution, the court must consider 27 several factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to 28 manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition 1 1 of cases on their merits; and (5) the availability of less drastic sanctions. Henderson v. Duncan, 779 2 F.2d 1421, 1423 (9th Cir. 1986); Carey v. King, 856 F.2d 1439 (9th Cir. 1988). The public’s interest in 3 expeditiously resolving this litigation and the Court’s interest in managing its docket weigh in favor of 4 dismissal, as this case has been pending since December 30, 2010. (Doc. 1). This case cannot be held 5 in abeyance indefinitely based on Plaintiff’s continuous failure to comply with the Court’s orders. 6 The risk of prejudice to Defendants also weighs in favor of dismissal, since a presumption of 7 injury arises from the occurrence of unreasonable delay in prosecuting an action. Anderson v. Air 8 West, 542 F.2d 522, 524 (9th Cir. 1976). Similarly, the factors in favor of dismissal discussed above 9 greatly outweigh the public policy favoring disposition of cases on their merits. Finally, no lesser 10 sanction is feasible given the Court’s inability to communicate with Plaintiff based on Plaintiff’s 11 failure to comply with the Court’s orders. 12 DISMISSED without prejudice for failure to prosecute. Therefore, it is recommended that this matter be FINDINGDS AND RECOMMENDATIONS 13 14 Accordingly, the Magistrate Judge HEREBY RECOMMENDS as follows: 15 1. That this action be DISMISSED without prejudice for Plaintiff's failure to 16 17 prosecute; and 2. That these findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty days 19 after being served with these findings and recommendations, any party may file written objections 20 with the court and serve a copy on all parties. Such a document should be captioned "Objections to 21 Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and 22 filed within ten days after service of the objections. The parties are advised that failure to file 23 objections within the specified time may waive the right to appeal the District Court's order. Martinez 24 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 27 Dated: May 22, 2013 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 28 2

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.