Isaiah Joel Petillo v. Frank Bolan et al

Filing 18

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE by Judge Cormac J. Carney for Report and Recommendation (Issued), 9 . The Court accepts the findings and recommendations of the Magistrate Judge. IT IS THEREFORE ORDERED that judgment be entered dismissing this action without prejudice. (See Order for details) (bem)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ISAIAH JOEL PETILLO, 10 11 12 Plaintiff, v. FRANK BOLAN et al., 13 Defendants. 14 ) ) ) ) ) ) ) ) ) ) Case No. CV 16-2513-CJC (JPR) ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF U.S. MAGISTRATE JUDGE 15 16 The Court has reviewed the Complaint, records on file, and 17 Report and Recommendation of U.S. Magistrate Judge. See 28 18 U.S.C. § 636. 19 the R. & R., in which he argues, at length, that his Complaint is 20 not barred by Heck v. Humphrey, 512 U.S. 477 (1994), as the 21 Magistrate Judge concluded. 22 It makes no difference if, for example, the warrant he alleges 23 was forged bore the purported signature of a judge other than the 24 one who presided over his trial (see Objs. at 15-16) because the 25 DNA and other evidence collected from it were nonetheless used to 26 convict him. 27 filled with allegations concerning the alleged falsity of the On August 22, 2016, Plaintiff filed objections to But saying that does not make it so. Both the Complaint and Plaintiff’s objections are 28 1 1 evidence used to convict him of murder.1 2 convincing when he states that he “by no means” intends the 3 Complaint to imply the invalidity of his conviction or sentence. 4 (Id. at 18-19.) 5 in this lawsuit “in the future . . . may be helpful” in getting 6 his convictions “invalidated.” 7 the order wrong: he must first get his convictions invalidated 8 and then he may bring the challenges outlined in the Complaint. 9 Thus, Plaintiff is not Indeed, he later acknowledges that his success (Id. at 19.) But Plaintiff has The Court accepts the findings and recommendations of the 10 Magistrate Judge. IT IS THEREFORE ORDERED that judgment be 11 entered dismissing this action without prejudice.2 12 13 DATED: January 5, 2017 CORMAC J. CARNEY U.S. DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Plaintiff alleges in his objections that Defendants were motivated by racial animus in investigating and prosecuting him and that Heck does not apply because he does not directly challenge the evidence Defendants collected but rather their unconstitutional reasons for targeting him. (See Objs. at 17, 19.) But no allegations of racial animus appear anywhere in the Complaint. Moreover, the Complaint and the objections repeatedly challenge the evidence used to convict him as forged, fabricated, or falsified. Thus, Heck bars his lawsuit. See Langston v. Enkojii, No. CIV S-10-2715 GGH P, 2010 WL 5481789, at *2 (E.D. Cal. Jan. 3, 2010) (Heck likely barred lawsuit by prisoner who claimed police initially arrested him based on racial profiling and then falsified evidence during prosecution). 2 Plaintiff may refile this lawsuit only if he subsequently succeeds in getting his convictions overturned, however. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (dismissal under Heck is “required to be without prejudice so that [plaintiff] may reassert his claims if he ever succeeds in invalidating his conviction”). 2

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