Dennis Petillo, Jr. v. County of Los Angeles Dept of Children and Family Services

Filing 10

ORDER OF DISMISSAL by Judge John F. Walter. Because Petitioner does not state a claim for relief under 28 U.S.C. § 2254, dismissal of the Petition is warranted. ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice. See order for complete details. Case Terminated. Made JS-6. (hr)

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JS-6

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION
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DENNIS PETILLO, JR.,
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) Case No. CV 17-08062-JFW (AS)
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Petitioner,
) ORDER OF DISMISSAL
)
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v.
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LOS ANGELES DEPT. OF CHILDREN )
& FAMILY SERVICES,
)
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Respondent.
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)

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I.

BACKGROUND

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On November 3, 2017, Dennis Petillo, Jr. (“Petitioner”), a

23 proceeding pro se, filed a “Petition for Writ of Habeas Corpus”
24 (“Petition”).

(Docket Entry No. 1).

The Petition alleged that

25 Child Services failed to investigate Petitioner’s complaint that
26 his sister had been molested by their father, in violation of the
27 prohibition against cruel and unusual punishment under the First,
28 Eighth and Fourteenth Amendments.
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(Petition at 3).

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On November 8, 2017, the Court screened the Petition and

2 found it to be deficient in the following respects: “(1) It is not
3 clear whether Petitioner is attempting to file a Petition for Writ
4 of Habeas Corpus by a Person in State Custody (pursuant to 28
5 U.S.C. § 2254), or some other pleading (i.e., a civil rights
6 action pursuant to 42 U.S.C. § 1983); (2) The Court is unable to
7 discern what claim(s) Petitioner intends to assert; (3) Petitioner
8 has failed to name the proper Respondent (the name of the officer
9 having custody over him); (4) Petitioner has failed to plainly
10 state

“[t]he

statutory

or

other

basis

for

the

exercise

of

11 jurisdiction by this Court,” in violation of Central District
12 Local Rule 8-1 and Fed.R.Civ.P. Rule 8(a); (5) Assuming the
13 pleading is a Petition for Writ of Habeas Corpus by a Person in
14 State Custody, Petitioner has failed to specify any understandable
15 ground for relief and does not include any supporting facts, in
16 violation of Rule 2(c), Rules Governing Section 2254 Cases in the
17 United States District Courts; (6) Petitioner has alleged vague
18 and conclusory “claims,” in violation of Fed.R.Civ.P. Rule 8(a)
19 and 8(d); (7) Petitioner has failed to allege any claim(s), much
20 less

any

claims

21 confinement.

which

go

to

the

fact

or

duration

of

his

See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973);

22 and (8) It is not clear whether Petitioner has exhausted his state
23 remedies with respect to each “claim” alleged in the Petition.”
24 (Docket Entry No. 3 at 1-2). The Court ordered Petitioner to file
25 a First Amended Petition on the proper Central District form by
26 November 29, 2017, and informed Petitioner that, “The First
27 Amended Petition shall be complete in itslef, must not incorporate
28 by reference any other pleading, and should set forth each claim
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1 which Petitioner[] intend[s] to raise in this proceeding and the
2 factual bases for each claim.

(Id. at 2).

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On November 13, 2017, Petitioner filed a “First Amended

5 Petition for Writ of Habeas Corpus” (“First Amended Petition”).
6 (Docket Entry No. 4).

The First Amended Petition appeared to

7 allege inter alia that Petitioner attempted to protect himself
8 following his father’s threats to murder him, resulting in the
9 violation of the prohibition against cruel and unusual punishment
10 under the First, Eighth and Fourteenth Amendments. (First Amended
11 Petition at 3).
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On November 17, 2017, the Court issued an Order finding the

14 First Amended Petition was deficient in the following respects:
15 “(1) It is not clear whether Petitioner is attempting to file a
16 First Amended Petition for Writ of Habeas Corpus by a Person in
17 State Custody (pursuant to 28 U.S.C. § 2254) , or some other
18 pleading (i.e., a civil rights action pursuant to 42 U.S.C. §
19 1983); (2) The Court is unable to discern what claim(s) Petitioner
20 intends to assert; (3) Petitioner has failed to name the proper
21 Respondent (the name of the state officer having custody over him,
22 i.e., prison warden).

Petitioner’s father is not a proper

23 respondent.; (4) Petitioner has failed to plainly state “[t]he
24 statutory or other basis for the exercise of jurisdiction by this
25 Court,” in violation of Central District Local Rule 8-1 and
26 Fed.R.Civ.P. Rule 8(a); (5) Assuming the pleading is a First
27 Amended Petition for Writ of Habeas Corpus by a Person in State
28 Custody, Petitioner has failed to specify any understandable
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1 ground for relief and does not include any supporting facts, in
2 violation of Rule 2(c), Rules Governing Section 2254 Cases in the
3 United States District Courts; (6) Petitioner has alleged vague
4 and conclusory “claims,” in violation of Fed.R.Civ.P. Rule 8(a)
5 and 8(d); (7) Petitioner has failed to allege any claim(s), much
6 less

any

claims

7 confinement.

which

go

to

the

fact

or

duration

of

his

See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973);

8 and (8) It is not clear whether Petitioner has exhausted his state
9 remedies with respect to each “claim” alleged in the First Amended
10 Petition.”

(Docket Entry No. 5 at 1-2).

The Court ordered

11 Petitioner to file a Second Amended Petition on the proper Central
12 District form by December 8, 2017, and informed Petitioner that,
13 “The Second Amended Petition shall be complete in itslef, must not
14 incorporate by reference any other pleading, and should set forth
15 each claim which Petitioner intends to raise in this proceeding
16 and the factual bases for each claim.

Id. at 2.

The Court

17 expressly warned Petitioner that his failure to comply with the
18 the Order would result in a recommendation that this action be
19 dismissed for failure to comply with the Court’s Order and/or for
20 failure to prosecute pursuant to Fed.R.Civ.P. 41(b)).

(Id.).

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On

December

27,

2017,

the

Court

issued

a

Report

and

23 Recommendation recommending the dismissal of this action based on
24 Petitioner’s failure to comply with the Court’s Order dated
25 November 17, 2017 and/or for failure to prosecute.

(Docket Entry

26 No. 7).
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On

January

24,

2018,

Petitioner
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filed

what

the

Court

1 construed as a Second Amended Petition by a Person in State
2 Custody pursuant to 28 U.S.C. § 2254 (“Second Amended Petition”).
3 Docket Entry No. 8).
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Based on the filing of the Second Amended Petition, on

6 January 29, 2017, the Court issued an Order vacating the December
7 27, 2017 Report and Recommendation.

(Docket Entry No. 9).

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The Second Amended Petition asserts the following grounds for

10 federal habeas relief: (1) “Violation of 1st[,] 8th[,] 14th
11 Amendment Constitution Bill of Rites (sic) Terrorist Threats
12 Harrasment (sic) Tourcher (sic) Cruel Unusual Punishment[.]

Mr.

13 Volio Medina are (sic) a known gang member aka Lil Scrap objective
14 to notify the courts government of these illegal criminal activity
15 (sic) I had witnessed engage in the exchange of gun fire warfare
16 felony pimpin (sic) and pandorin (sic) to prostitution solicitin’
17 the owner of a (sic) illegal fire arm child abuse father of 3
18 children molestation rape[.]; and (2) White v. Wells Fargo Guard
19 Serv[,] 908 F Supp 1570 MD Ala 1995 Harrasment (sic)[,] Pellerin
20 v. Martin Marigafta Manned Space Inc.[,] 63 Fair Empl Prac Cas BNA
21 985[.]

EDLA

1993

Racial

Discrimination.”

(Second

Amended

22 Petition at 5).
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A Petition for Writ of Habeas Corpus can only be filed by a

25 petitioner who is in state custody and contends that such custody
26 is in violation of the Constitution, laws or treaties of the
27 United States.

28 U.S.C.

§ 2254(c).

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The claims alleged in the Petition are incomprehensible,

2 vague and conclusory.

See Hendrix v. Vasquez, 908 F.2d 490, 491

3 (9th Cir. 1990) (“Summary dismissal is appropriate only where the
4 allegations
5 palpably

in

the

incredible

petition
.

.

are
.

‘vague
‘or

[or]

patently

conclusory”

or

frivolous

or

6 false.’”)(citations omitted).
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In addition, Petitioner has failed to allege any claim(s),

9 much less any the claims which go to the fact or duration of his
10 confinement.

See Preiser v. Rodriguez, 411 U.S. 475, 489 (1973).

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Because Petitioner does not state a claim for relief under

13 28 U.S.C. § 2254, dismissal of the Petition is warranted.
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II.

ORDER

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ACCORDINGLY, IT IS ORDERED that the Petition be dismissed

4 without prejudice.
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LET JUDGMENT BE ENTERED ACCORDINGLY.

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8 DATED: February 7, 2018
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_____________________________
JOHN F. WALTER
UNITED STATES DISTRICT JUDGE

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12 Presented by:
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/ s /
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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