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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 VINCENT CILIENTO, 11 Plaintiff, 12 v. 13 CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., 14 Defendants. 15 16 ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 17-953-DSF (PJW) ORDER DISMISSING ACTION FOR FAILURE TO PROSECUTE In February 2017, Plaintiff Vincent Ciliento, proceeding pro se, 17 filed this civil rights action against the California Department of 18 Corrections and two doctors working there. 19 doctors exaggerated the truth in their reports and “twisted” his 20 vandalism conviction--a non-violent crime--in order to have him 21 falsely imprisoned as a Mentally Disordered Offender at Atascadero 22 State Hospital (“ASH”). 23 released from prison in November 2016 and sought injunctive and 24 monetary relief. 25 the Board of Parole, which noted that, at an administrative hearing on 26 February 1, 2017, the presiding administrative law judge determined 27 that the special condition for treatment by the Department of State 28 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 1 violent. 2 Plaintiff was still at ASH. 3 Plaintiff had been discharged on February 17, 2017, and had not left a 4 forwarding address. 5 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 6 case should not be dismissed. Plaintiff was ordered to respond by 7 July 19, 2017, and was warned that, if he did not timely respond, his 8 case would be dismissed. 9 Postal Service because Plaintiff was no longer at ASH. That order was returned to the Court by the Two other 10 pleadings sent to Plaintiff at ASH were also returned because 11 Plaintiff was no longer living there. (Doc. Nos. 7, 9.) 12 Rule 41(b) of the Federal Rules of Civil Procedure authorizes a 13 district court to sua sponte dismiss an action for failure to comply 14 with a court order. 15 (1962) (“The power to invoke this sanction is necessary in order to 16 prevent undue delays in the disposition of pending cases and to avoid 17 congestion in the calendars of the District Courts.”). 18 whether dismissal is warranted, the Court considers five factors: 19 (1) the public’s interest in expeditious resolution of litigation, 20 (2) the Court’s need to manage its docket, (3) the risk of prejudice 21 to Defendants, (4) the public policy favoring the disposition of cases 22 on their merits, and (5) the availability of less drastic sanctions. 23 Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992); Omstead v. 24 Dell, 594 F.3d 1081, 1084 (9th Cir. 2010). Link v. Wabash R.R. Co., 370 U.S. 626, 629-30 In determining 25 The Court finds that the delay here necessarily implicates both 26 the interest in expeditious resolution of litigation and the Court’s 27 need to efficiently manage its docket--the first and second factors-- 28 2 1 and weighs in favor of dismissal. See Yourish v. Cal. Amplifier, 191 2 F.3d 983, 990 (9th Cir. 1999) (“[T]he public’s interest in expeditious 3 resolution of litigation always favors dismissal.”); Pagtalunan v. 4 Galaza, 291 F.3d 639, 642 (9th Cir. 2002) (finding factors of public 5 interest in expeditious resolution of case and court’s need to manage 6 its docket weigh in favor of dismissal where litigant failed to pursue 7 the case for almost four months). 8 Court apprised of his address--a violation of Local Rule 41-6--has 9 caused this action to come to a halt, impermissibly allowing Plaintiff Plaintiff’s failure to keep the 10 to control the pace of the docket rather than the Court. 11 191 F.3d at 990; Pagtalunan, 291 F.3d at 642 (“It is incumbent upon 12 the Court to manage its docket without being subject to routine 13 noncompliance of litigants . . . .”). 14 See Yourish, The third factor--risk of prejudice to Defendants--also weighs in 15 favor of dismissal. 16 fade and the evidence becomes stale, making it increasingly difficult 17 to defend against these claims. 18 Prod. Liab. Litig., 460 F.3d 1217, 1227 (9th Cir. 2006) (“The law . . 19 . presumes prejudice from unreasonable delay.”). 20 As time goes by, the witnesses’ memories begin to See In re Phenylpropa-nolamine (PPA) The fourth factor--the general policy favoring resolution of 21 cases on the merits--weighs in Plaintiff’s favor. 22 F.3d at 643 (“Public policy favors disposition of cases on the 23 merits.”). 24 factors. 25 See Pagtalunan, 291 But that factor alone is not enough to overcome the other Finally, the fifth factor--availability of less drastic 26 alternatives--also weighs in favor of dismissal. 27 to impose a lesser sanction, e.g., monetary sanctions, because 28 3 The Court is unable 1 Plaintiff is proceeding IFP and, therefore, does not have any money to 2 pay sanctions and because he cannot be found. 3 Considering all five factors, the Court concludes that dismissal 4 for failure to prosecute is warranted. 5 (concluding dismissal appropriate where supported by three factors); 6 Pagtalunan, 293 F.3d at 643 (same). 7 See Ferdik, 963 F.2d at 1263 IT IS SO ORDERED. 8 DATED: 8/22/17 9 10 11 DALE S. FISCHER UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 Presented by: 24 25 26 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 27 28 4

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