Petillo v. Federal Bureau of Investigation
Filing
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ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 11/9/2016 DECLINING to grant petitioner leave to proceed ifp at this time; and the Clerk shall assign a district judge to this case. IT IS RECOMMENDED that the 1 petition be dismissed without prejudice, and this case be closed. Assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DENNIS PETILLO, JR.,
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No. 2:16-cv-2586 KJN P
Petitioner,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
FEDERAL BUREAU OF
INVESTIGATION (“FBI”),
Respondent.
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas
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corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.
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However, petitioner’s application to proceed in forma pauperis is incomplete. Because the
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undersigned finds that the petition should be dismissed, as discussed below, the court declines to
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grant petitioner leave to proceed in forma pauperis at this time.
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Petitioner states in his petition that he was convicted on August 27, 2014, in the Los
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Angeles County Superior Court. However, it does not appear that petitioner is challenging either
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the fact or duration of his confinement. Rather, while not entirely clear, it appears that petitioner
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seeks to compel the FBI to conduct an investigation into alleged terrorist threats. Petitioner
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claims he has been attempting to contact the FBI since June, but has received no response.
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Petitioner also claims that innocent people are being murdered and tortured, and that he is trying
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to file a report so that it is investigated. (ECF No. 1 at 7.)
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A civil rights action is the proper mechanism for a prisoner seeking to challenge the
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conditions of his confinement. Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991). By contrast,
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habeas corpus proceedings are the proper mechanism for a prisoner seeking to challenge the fact
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or duration of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
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Therefore, unless petitioner is challenging the fact or duration of his confinement, he may
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not pursue relief through a petition for writ of habeas corpus. Moreover, it does not appear that
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petitioner is challenging the conditions of his confinement in Mule Creek State Prison. Rather, it
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appears that petitioner raises claims about events that took place outside the prison.
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Petitioner is required to establish standing for each claim he asserts. DaimlerChrysler
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Corp. v. Cuno, 547 U.S. 332, 352 (2006). If petitioner has no standing, the court has no subject
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matter jurisdiction. Nat’l Wildlife Fed’n v. Adams, 629 F.2d 587, 593 n.11 (9th Cir. 1980)
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(“[B]efore reaching a decision on the merits, we [are required to] address the standing issue to
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determine if we have jurisdiction.”). There are three requirements that must be met for petitioner
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to have standing: (1) he must have suffered an “injury in fact” -- an invasion of a legally
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protected interest which is both concrete and particularized and actual or imminent; (2) there must
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be a causal connection between the injury and the conduct complained of; and (3) it must be
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likely that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife,
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504 U.S. 555, 560-61 (1992); Wash. Legal Found. v. Legal Found. of Wash., 271 F.3d 835, 847
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(9th Cir. 2001) (en banc).
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Here, it appears that petitioner seeks an order requiring the FBI to investigate. Petitioner
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fails to demonstrate he has standing to bring the instant action in federal court because he fails to
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allege facts meeting all three requirements under Lujan. Moreover, because the named
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respondent is a federal agency, petitioner’s claims arise under Bivens v. Six Unknown Named
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Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). However,
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Bivens does not provide a cause of action against a federal agency.
See FDIC v. Meyer, 510 U.S. 471, 484-85, 114 S.Ct. 996, 127
L.Ed.2d 308 (1994); cf. Balser v. Department of Justice Office of
U.S. Trustee, 327 F.3d 903, 909 (9th Cir. 2003) (“The basis of a
Bivens action is some illegal or inappropriate conduct on the part of
a federal official or agent that violates a clearly established
constitutional right.”).
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Murphy v. Gordwin, 262 F. App’x 776, 777 (9th Cir. 2007). Thus, because it appears
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that amendment would be futile, the undersigned recommends that this action be dismissed
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without leave to amend.
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If petitioner seeks to challenge his underlying criminal conviction, he must file a petition
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for writ of habeas corpus in the Central District of California because he was convicted in Los
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Angeles County. Because it is clear that the instant petition does not challenge his conviction, the
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court will not transfer this action to the Central District.
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Accordingly, IT IS HEREBY ORDERED that:
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1. The undersigned declines to grant petitioner leave to proceed in forma pauperis at this
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time; and
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2. The Clerk of the Court is directed to assign a district judge to this case; and
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IT IS RECOMMENDED that the petition be dismissed without prejudice, and this case
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closed.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, petitioner may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,
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he shall also address whether a certificate of appealability should issue and, if so, why and as to
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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the
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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.
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§ 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may
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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991).
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Dated: November 9, 2016
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peti2586.114
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