Vincent Ciliento v. California Department of Corrections et al

Filing 11

ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE by Judge Dale S. Fischer. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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VINCENT CILIENTO,

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Plaintiff,

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v.

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CALIFORNIA DEPARTMENT
OF CORRECTIONS, et al.,

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Defendants.
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CASE NO. ED CV 17-953-DSF (PJW)
ORDER DISMISSING ACTION FOR
FAILURE TO PROSECUTE

In February 2017, Plaintiff Vincent Ciliento, proceeding pro se,

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filed this civil rights action against the California Department of

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Corrections and two doctors working there.

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doctors exaggerated the truth in their reports and “twisted” his

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vandalism conviction--a non-violent crime--in order to have him

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falsely imprisoned as a Mentally Disordered Offender at Atascadero

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State Hospital (“ASH”).

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released from prison in November 2016 and sought injunctive and

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monetary relief.

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the Board of Parole, which noted that, at an administrative hearing on

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February 1, 2017, the presiding administrative law judge determined

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that the special condition for treatment by the Department of State

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Hospital should be removed because Plaintiff’s crimes were non-

Plaintiff alleged that the

Plaintiff claimed that he should have been

Plaintiff attached to the Complaint a decision from

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violent.

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Plaintiff was still at ASH.

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Plaintiff had been discharged on February 17, 2017, and had not left a

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forwarding address.

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As a result, the Court contacted ASH to determine if
ASH personnel informed the Court that

On June 27, 2017, the Court issued an Order to Show Cause why the

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case should not be dismissed.

Plaintiff was ordered to respond by

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July 19, 2017, and was warned that, if he did not timely respond, his

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case would be dismissed.

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Postal Service because Plaintiff was no longer at ASH.

That order was returned to the Court by the
Two other

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pleadings sent to Plaintiff at ASH were also returned because

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Plaintiff was no longer living there.

(Doc. Nos. 7, 9.)

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Rule 41(b) of the Federal Rules of Civil Procedure authorizes a

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district court to sua sponte dismiss an action for failure to comply

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with a court order.

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(1962) (“The power to invoke this sanction is necessary in order to

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prevent undue delays in the disposition of pending cases and to avoid

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congestion in the calendars of the District Courts.”).

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whether dismissal is warranted, the Court considers five factors:

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(1) the public’s interest in expeditious resolution of litigation,

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(2) the Court’s need to manage its docket, (3) the risk of prejudice

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to Defendants, (4) the public policy favoring the disposition of cases

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on their merits, and (5) the availability of less drastic sanctions.

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Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992); Omstead v.

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Dell, 594 F.3d 1081, 1084 (9th Cir. 2010).

Link v. Wabash R.R. Co., 370 U.S. 626, 629-30

In determining

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The Court finds that the delay here necessarily implicates both

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the interest in expeditious resolution of litigation and the Court’s

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need to efficiently manage its docket--the first and second factors--

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and weighs in favor of dismissal.

See Yourish v. Cal. Amplifier, 191

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F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious

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resolution of litigation always favors dismissal.”); Pagtalunan v.

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Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (finding factors of public

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interest in expeditious resolution of case and court’s need to manage

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its docket weigh in favor of dismissal where litigant failed to pursue

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the case for almost four months).

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Court apprised of his address--a violation of Local Rule 41-6--has

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caused this action to come to a halt, impermissibly allowing Plaintiff

Plaintiff’s failure to keep the

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to control the pace of the docket rather than the Court.

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191 F.3d at 990; Pagtalunan, 291 F.3d at 642 (“It is incumbent upon

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the Court to manage its docket without being subject to routine

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noncompliance of litigants . . . .”).

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See Yourish,

The third factor--risk of prejudice to Defendants--also weighs in

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favor of dismissal.

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fade and the evidence becomes stale, making it increasingly difficult

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to defend against these claims.

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Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (“The law . .

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. presumes prejudice from unreasonable delay.”).

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As time goes by, the witnesses’ memories begin to

See In re Phenylpropa-nolamine (PPA)

The fourth factor--the general policy favoring resolution of

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cases on the merits--weighs in Plaintiff’s favor.

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F.3d at 643 (“Public policy favors disposition of cases on the

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merits.”).

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factors.

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See Pagtalunan, 291

But that factor alone is not enough to overcome the other

Finally, the fifth factor--availability of less drastic

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alternatives--also weighs in favor of dismissal.

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to impose a lesser sanction, e.g., monetary sanctions, because

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The Court is unable

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Plaintiff is proceeding IFP and, therefore, does not have any money to

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pay sanctions and because he cannot be found.

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Considering all five factors, the Court concludes that dismissal

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for failure to prosecute is warranted.

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(concluding dismissal appropriate where supported by three factors);

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Pagtalunan, 293 F.3d at 643 (same).

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See Ferdik, 963 F.2d at 1263

IT IS SO ORDERED.

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DATED:

8/22/17

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DALE S. FISCHER
UNITED STATES DISTRICT JUDGE

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Presented by:

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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