Petillo v. Kearnan et al
Filing
13
ORDER Dismissing Second Amended Complaint for Failing to State a Claim Pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Signed by Judge Michael M. Anello on 4/26/2017.(All non-registered users served via U.S. Mail Service)(ag)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
SOUTHERN DISTRICT OF CALIFORNIA
10
11
12
ISAIAH JOEL PETILLO,
CDCR #T-44601,
Case No.: 3:16-cv-01950-MMA-JMA
ORDER DISMISSING SECOND
AMENDED COMPLAINT FOR
FAILING TO STATE A CLAIM
PURSUANT TO 28 U.S.C. § 1915(e)(2)
AND § 1915A(b)
Plaintiff,
13
vs.
14
15
16
SCOTT KEARNAN, et al.
Defendants.
17
18
19
20
21
22
23
I.
Procedural History
24
On August 1, 2016, Isaiah Joel Petillo (“Plaintiff”), a prisoner incarcerated in
25
Corcoran State Prison located in Corcoran, California, and proceeding pro se, filed a civil
26
rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff alleged
27
that prison officials at five separate prisons violated his constitutional rights when they
28
1
3:16-cv-01950-MMA-JMA
1
classified him with an “R” suffix1. (Compl., Doc. No. 1 at 1, 10.) Plaintiff has named
2
thirty one (31) defendants in this matter. (Id. at 1-9.) Plaintiff did not prepay the civil
3
filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a
4
Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No.
5
4).
6
On October 24, 2016, Plaintiff’s IFP motion was granted but his Complaint was
7
simultaneously dismissed for failing to state a claim upon which relief could be granted.
8
(Doc. No. 7 at 15-16.) On November 28, 2016, Plaintiff filed his First Amended
9
Complaint (“FAC”) and later filed a “Declaration in Support of Complaint.” (Doc. Nos.
10
8, 10.) However, the Court once again found that Plaintiff’s FAC failed to state a claim
11
upon which relief could be granted and dismissed his FAC. (Doc. No. 11 at 9-10.)
12
Plaintiff was again granted leave to file an amended pleading in order to correct the
13
deficiencies of pleading identified in the Court’s Order. (Id.) On March 9, 2017,
14
Plaintiff filed his Second Amended Complaint (“SAC”). (Doc. No. 12.)
15
II.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
16
A.
17
Because Plaintiff is a prisoner and is proceeding IFP, his SAC requires a pre-
Standard of Review
18
answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
19
statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
20
it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
21
who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)
22
(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.
23
2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that
24
the targets of frivolous or malicious suits need not bear the expense of responding.’”
25
26
1
27
28
Pursuant to Cal. Code Regs., tit. 15 § 3377.1(b), “[a]n ‘R’ suffix shall be affixed to an inmate’s
custody designation to ensure the safety of inmates, correctional personnel, and the general public by
identifying inmates who have a history of specific sex offenses as outlined in Penal Code (PC) section
290.”
2
3:16-cv-01950-MMA-JMA
1
Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford
2
Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
3
“The standard for determining whether a plaintiff has failed to state a claim upon
4
which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
5
Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
6
F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
7
Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
8
applied in the context of failure to state a claim under Federal Rule of Civil Procedure
9
12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,
10
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
11
556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
12
Detailed factual allegations are not required, but “[t]hreadbare recitals of the
13
elements of a cause of action, supported by mere conclusory statements, do not suffice.”
14
Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
15
relief [is] . . . a context-specific task that requires the reviewing court to draw on its
16
judicial experience and common sense.” Id. The “mere possibility of misconduct” or
17
“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
18
this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
19
(9th Cir. 2009).
20
B.
21
As a preliminary matter, the Court finds that Plaintiff’s SAC fails to comply with
Rule 8
22
Rule 8 of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil
23
Procedure provides that in order to state a claim for relief in a pleading it must contain “a
24
short and plain statement of the grounds for the court’s jurisdiction” and “a short and
25
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
26
8(a)(1) & (2).
27
///
28
///
3
3:16-cv-01950-MMA-JMA
1
Here, Plaintiff’s SAC offers far less factual allegations than his Complaint. Instead
2
of setting for specific factual allegations to support his claims, Plaintiff cites to his
3
original Complaint. (See SAC at 2-6). However, Plaintiff was instructed by this Court
4
that if he elected to “file an Amended Complaint, it must be complete by itself without
5
reference to his original pleading.” (Doc. No. 11 at 9-10 citing S.D. CAL. CIVLR 15.1;
6
Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.
7
1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693
8
F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which
9
are not re-alleged in an amended pleading may be “considered waived if not repled.”).
10
11
Plaintiff failed to follow this instruction in both his FAC and SAC.
In addition, throughout his SAC, Plaintiff simply lists a number of Defendants
12
without connecting them to any specific factual allegation. (See SAC at 6-8.) “The
13
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it
14
demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”
15
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
16
17
Thus, the Court finds that Plaintiff’s SAC plainly falls short of complying with
Rule 8 and the Court’s local rules, and for that reason alone, requires dismissal.
18
D.
19
Throughout Plaintiff’s SAC, he alleges that he has been housed at a number of
Fourteenth Amendment due process claims
20
different institutions under the jurisdiction of the California Department of Corrections
21
and Rehabilitation (“CDCR”). The only allegations regarding Defendants at Calipatria
22
State Prison (“CAL”) involve the CAL institutional classification committee’s (“ICC”)
23
decision to apply an “R” suffix to Plaintiff in 2010. (See SAC at 2-3.) The Due Process
24
Clause protects prisoners against deprivation or restraint of “a protected liberty interest”
25
and “atypical and significant hardship on the inmate in relation to the ordinary incidents
26
of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting Sandin v.
27
Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks omitted).
28
4
3:16-cv-01950-MMA-JMA
1
2
3
4
5
6
Although the level of the hardship must be determined in a case-by-case
determination, courts look to:
1) whether the challenged condition ‘mirrored those conditions imposed
upon inmates in administrative segregation and protective custody,’ and thus
comported with the prison’s discretionary authority; 2) the duration of the
condition, and the degree of restraint imposed; and 3) whether the state’s
action will invariably affect the duration of the prisoner’s sentence.
7
Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has
8
alleged facts sufficient to show a protected liberty interest does the court next consider
9
“whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334
10
11
F.3d at 860.
As currently pleaded, Plaintiff’s SAC fails to allege facts which show that having
12
an “R” suffix subjected him to any “atypical and significant hardship in relation to the
13
ordinary incidents of prison life.” Id.; Sandin, 515 U.S. at 584. Plaintiff claims that he
14
has suffered “atypical and significant hardship” because “parole board members will be
15
reluctant to give Plaintiff a parole date based on the “R” suffix classification.” (SAC at
16
9.) However, this is purely speculative on his part and he provides no factual allegations
17
as to whether he is eligible for parole or that there is any date for a parole hearing.
18
In addition, Plaintiff claims that the “R” suffix “restricts Plaintiff from enjoying the
19
privilege regular prisoners receive in regard to [conjugal] visitations with family &
20
friends.” (Id. at 10-11.) However, it is “well-settled that prisoners have no constitutional
21
right while incarcerated to contact visits or conjugal visits.” Gerber v. Hickman, 291
22
F.3d 617, 621 (9th Cir. 2002) (citing Kentucky Dep’t of Corrs v. Thompson, 490 U.S.
23
454, 460 (1989)).
24
Based on these claims alone, the Court finds his pleading contains no “factual
25
content that allows the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678,
26
that Defendants’ actions “presented a dramatic departure from the basic conditions of
27
[Plaintiff’s] indeterminate sentence,” or caused him to suffer an “atypical” or “significant
28
hardship.” Sandin, 515 U.S. at 584-85.
5
3:16-cv-01950-MMA-JMA
1
However, even if Plaintiff has alleged facts sufficient to invoke a protected liberty
2
interest under Sandin, he fails to plead facts to plausibly show he was denied the
3
procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678;
4
Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr.,
5
751 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the
6
charges at least 24 hours before the disciplinary hearing; (2) a written statement by the
7
fact-finder of the evidence relied on and reasons for the disciplinary action; (3) the right
8
to call witnesses and present documentary evidence if doing so will not jeopardize
9
institutional safety or correctional goals; (4) the right to appear before an impartial body;
10
and (5) assistance from fellow inmates or prison staff in complex cases. Wolff v.
11
McDonnell, 418 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071, 1079-80
12
(9th Cir. 2003). Plaintiff offers no factual allegations to support a finding that he was
13
denied his due process rights during his 2010 classification hearing.
14
Accordingly, the Court finds that Plaintiff’s SAC fails to state a procedural due
15
process claim as to any Defendant; therefore, his Fourteenth Amendment claims are also
16
subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and
17
§ 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.
18
D.
19
Plaintiff also alleges that he has been subjected to cruel and unusual punishment in
Eighth Amendment failure to protect claims
20
violation of his Eighth Amendment rights by having the “R” suffix classification. The
21
Eighth Amendment requires that prison officials take reasonable measures to guarantee
22
the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994);
23
Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth Amendment
24
failure to protect claim, however, Plaintiff must allege facts sufficient to plausibly show
25
that (1) he faced conditions posing a “substantial risk of serious harm” to his health or
26
safety, and (2) the individual prison officials he seeks to hold liable were “deliberately
27
indifferent” to those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144,
28
1150 (9th Cir. 2010). To demonstrate deliberate indifference, Plaintiff must show that the
6
3:16-cv-01950-MMA-JMA
1
defendant both knew of and disregarded a substantial risk of serious harm to his health
2
and safety. Farmer, 511 U.S. at 837. Thus, Plaintiff must allege “the official [was] both
3
be aware of facts from which the inference could be drawn that a substantial risk of
4
serious harm exist[ed], and [that] he . . . also dr[e]w that inference.” Id.
5
There are no facts from which the Court could conclude that any Defendant acted
6
with “deliberate indifference” to a serious risk of harm to Plaintiff. Plaintiff does not
7
allege, in any way, that apart from having the “R” suffix that any named Defendant was
8
actually aware of any known, specific threats to Plaintiff’s safety. Plaintiff does not
9
allege that any of the named Defendants were aware that other inmates allegedly knew of
10
Plaintiff’s classification status.2
11
Here, the Court finds that Plaintiff fails to allege that any Defendant was aware of
12
any facts demonstrating an “obvious” risk and failed to take any action. Farmer, 511 U.S.
13
842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (“Much like
14
recklessness in criminal law, deliberate indifference . . . may be shown by circumstantial
15
evidence when the facts are sufficient to demonstrate that a defendant actually knew of a
16
risk of harm.”).
17
For these reasons, the Court finds Plaintiff’s failure to protect claims against all
18
Defendants also must be dismissed for failing to state a claim pursuant to 28 U.S.C.
19
§ 1915(e)(2)(b)(ii) and § 1915A(b)(1). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at
20
1004.
21
///
22
///
23
24
25
26
27
28
2
Plaintiff does allege Correctional Officer Gonzalez “told another correctional officer that “that dude
[Plaintiff] there is a rapist.” (SAC at 4.) However, Plaintiff indicates that Gonzalez is not a defendant in
this action and the Court takes judicial notice that Plaintiff is already bringing a separate action against
Gonzalez for claims he refers to in this action. See Petillo v. Peterson, et al., E.D. Cal. Civil Case No.
1:16-cv-00488-MJS.
7
3:16-cv-01950-MMA-JMA
1
E.
2
Finally, while Rule 15(a)(2) provides that “[t]he court should give leave [to amend]
3
freely when justice so requires,” the Court further finds that amendment under the
4
circumstances of this case would be futile. See Vasquez v. Los Angeles County, 487 F.3d
5
1246, 1258 (9th Cir. 2007) (citing Schmier v. U.S. Court of Appeals for the Ninth Circuit,
6
279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis
7
for dismissal without leave to amend)).
8
III.
9
10
Leave to Amend
Conclusion and Order
Good cause appearing, the Court:
DISMISSES Plaintiff’s Second Amended Complaint for failing to state a claim
11
upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
12
1915A(b)(1) and DENIES leave to amend as futile.
13
The Clerk of Court is instructed to close the file.
14
IT IS SO ORDERED.
15
16
DATE: April 26, 2017
_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge
17
18
19
20
21
22
23
24
25
26
27
28
8
3:16-cv-01950-MMA-JMA
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?