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)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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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,

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vs.

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SCOTT KEARNAN, et al.
Defendants.

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I.

Procedural History

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On August 1, 2016, Isaiah Joel Petillo (“Plaintiff”), a prisoner incarcerated in

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Corcoran State Prison located in Corcoran, California, and proceeding pro se, filed a civil

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rights complaint (“Compl.”) pursuant to 42 U.S.C. § 1983. (Doc. No. 1.) Plaintiff alleged

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that prison officials at five separate prisons violated his constitutional rights when they

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classified him with an “R” suffix1. (Compl., Doc. No. 1 at 1, 10.) Plaintiff has named

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thirty one (31) defendants in this matter. (Id. at 1-9.) Plaintiff did not prepay the civil

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filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead, he filed a

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Motion to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a) (Doc. No.

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4).

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On October 24, 2016, Plaintiff’s IFP motion was granted but his Complaint was

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simultaneously dismissed for failing to state a claim upon which relief could be granted.

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(Doc. No. 7 at 15-16.) On November 28, 2016, Plaintiff filed his First Amended

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Complaint (“FAC”) and later filed a “Declaration in Support of Complaint.” (Doc. Nos.

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8, 10.) However, the Court once again found that Plaintiff’s FAC failed to state a claim

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upon which relief could be granted and dismissed his FAC. (Doc. No. 11 at 9-10.)

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Plaintiff was again granted leave to file an amended pleading in order to correct the

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deficiencies of pleading identified in the Court’s Order. (Id.) On March 9, 2017,

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Plaintiff filed his Second Amended Complaint (“SAC”). (Doc. No. 12.)

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II.

Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

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A.

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Because Plaintiff is a prisoner and is proceeding IFP, his SAC requires a pre-

Standard of Review

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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these

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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of

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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants

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who are immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc)

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(discussing 28 U.S.C. § 1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir.

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2010) (discussing 28 U.S.C. § 1915A(b)). “The purpose of [screening] is ‘to ensure that

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the targets of frivolous or malicious suits need not bear the expense of responding.’”

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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.”
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Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting Wheeler v. Wexford

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Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).

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“The standard for determining whether a plaintiff has failed to state a claim upon

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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668

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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th

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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard

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applied in the context of failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6)”). Rule 12(b)(6) requires a complaint to “contain sufficient factual matter,

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accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.

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Detailed factual allegations are not required, but “[t]hreadbare recitals of the

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elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for

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relief [is] . . . a context-specific task that requires the reviewing court to draw on its

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judicial experience and common sense.” Id. The “mere possibility of misconduct” or

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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting

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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969

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(9th Cir. 2009).

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B.

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As a preliminary matter, the Court finds that Plaintiff’s SAC fails to comply with

Rule 8

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Rule 8 of the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil

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Procedure provides that in order to state a claim for relief in a pleading it must contain “a

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short and plain statement of the grounds for the court’s jurisdiction” and “a short and

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plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.

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8(a)(1) & (2).

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Here, Plaintiff’s SAC offers far less factual allegations than his Complaint. Instead

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of setting for specific factual allegations to support his claims, Plaintiff cites to his

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original Complaint. (See SAC at 2-6). However, Plaintiff was instructed by this Court

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that if he elected to “file an Amended Complaint, it must be complete by itself without

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reference to his original pleading.” (Doc. No. 11 at 9-10 citing S.D. CAL. CIVLR 15.1;

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Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir.

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1989) (“[A]n amended pleading supersedes the original.”); Lacey v. Maricopa Cnty., 693

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F.3d 896, 928 (9th Cir. 2012) (noting that claims dismissed with leave to amend which

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are not re-alleged in an amended pleading may be “considered waived if not repled.”).

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Plaintiff failed to follow this instruction in both his FAC and SAC.
In addition, throughout his SAC, Plaintiff simply lists a number of Defendants

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without connecting them to any specific factual allegation. (See SAC at 6-8.) “The

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pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it

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demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.”

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Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

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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.

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D.

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Throughout Plaintiff’s SAC, he alleges that he has been housed at a number of

Fourteenth Amendment due process claims

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different institutions under the jurisdiction of the California Department of Corrections

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and Rehabilitation (“CDCR”). The only allegations regarding Defendants at Calipatria

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State Prison (“CAL”) involve the CAL institutional classification committee’s (“ICC”)

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decision to apply an “R” suffix to Plaintiff in 2010. (See SAC at 2-3.) The Due Process

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Clause protects prisoners against deprivation or restraint of “a protected liberty interest”

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and “atypical and significant hardship on the inmate in relation to the ordinary incidents

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of prison life.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (quoting Sandin v.

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Conner, 515 U.S. 472, 484 (1995)) (internal quotation marks omitted).

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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.

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Ramirez, 334 F.3d at 861 (quoting Sandin, 515 U.S. at 486-87). Only if an inmate has

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alleged facts sufficient to show a protected liberty interest does the court next consider

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“whether the procedures used to deprive that liberty satisfied Due Process.” Ramirez, 334

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F.3d at 860.
As currently pleaded, Plaintiff’s SAC fails to allege facts which show that having

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an “R” suffix subjected him to any “atypical and significant hardship in relation to the

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ordinary incidents of prison life.” Id.; Sandin, 515 U.S. at 584. Plaintiff claims that he

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has suffered “atypical and significant hardship” because “parole board members will be

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reluctant to give Plaintiff a parole date based on the “R” suffix classification.” (SAC at

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9.) However, this is purely speculative on his part and he provides no factual allegations

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as to whether he is eligible for parole or that there is any date for a parole hearing.

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In addition, Plaintiff claims that the “R” suffix “restricts Plaintiff from enjoying the

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privilege regular prisoners receive in regard to [conjugal] visitations with family &

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friends.” (Id. at 10-11.) However, it is “well-settled that prisoners have no constitutional

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right while incarcerated to contact visits or conjugal visits.” Gerber v. Hickman, 291

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F.3d 617, 621 (9th Cir. 2002) (citing Kentucky Dep’t of Corrs v. Thompson, 490 U.S.

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454, 460 (1989)).

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Based on these claims alone, the Court finds his pleading contains no “factual

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content that allows the court to draw the reasonable inference,” Iqbal, 556 U.S. at 678,

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that Defendants’ actions “presented a dramatic departure from the basic conditions of

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[Plaintiff’s] indeterminate sentence,” or caused him to suffer an “atypical” or “significant

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hardship.” Sandin, 515 U.S. at 584-85.
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However, even if Plaintiff has alleged facts sufficient to invoke a protected liberty

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interest under Sandin, he fails to plead facts to plausibly show he was denied the

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procedural protections the Due Process Clause requires. See Iqbal, 556 U.S. at 678;

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Ramirez, 334 F.3d at 860 (citations omitted); see also Brown v. Oregon Dep’t of Corr.,

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751 F.3d 983, 987 (9th Cir. 2014). Those procedures include: (1) written notice of the

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charges at least 24 hours before the disciplinary hearing; (2) a written statement by the

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fact-finder of the evidence relied on and reasons for the disciplinary action; (3) the right

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to call witnesses and present documentary evidence if doing so will not jeopardize

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institutional safety or correctional goals; (4) the right to appear before an impartial body;

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and (5) assistance from fellow inmates or prison staff in complex cases. Wolff v.

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McDonnell, 418 U.S. 539, 563-72 (1974); Serrano v. Francis, 345 F.3d 1071, 1079-80

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(9th Cir. 2003). Plaintiff offers no factual allegations to support a finding that he was

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denied his due process rights during his 2010 classification hearing.

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Accordingly, the Court finds that Plaintiff’s SAC fails to state a procedural due

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process claim as to any Defendant; therefore, his Fourteenth Amendment claims are also

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subject to sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and

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§ 1915A(b)(1). See Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at 1004.

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D.

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Plaintiff also alleges that he has been subjected to cruel and unusual punishment in

Eighth Amendment failure to protect claims

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violation of his Eighth Amendment rights by having the “R” suffix classification. The

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Eighth Amendment requires that prison officials take reasonable measures to guarantee

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the safety and well-being of prisoners. Farmer v. Brennan, 511 U.S. 825, 832–33 (1994);

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Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). To state an Eighth Amendment

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failure to protect claim, however, Plaintiff must allege facts sufficient to plausibly show

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that (1) he faced conditions posing a “substantial risk of serious harm” to his health or

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safety, and (2) the individual prison officials he seeks to hold liable were “deliberately

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indifferent” to those risks. Farmer, 511 U.S. at 837; Thomas v. Ponder, 611 F.3d 1144,

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1150 (9th Cir. 2010). To demonstrate deliberate indifference, Plaintiff must show that the
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defendant both knew of and disregarded a substantial risk of serious harm to his health

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and safety. Farmer, 511 U.S. at 837. Thus, Plaintiff must allege “the official [was] both

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be aware of facts from which the inference could be drawn that a substantial risk of

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serious harm exist[ed], and [that] he . . . also dr[e]w that inference.” Id.

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There are no facts from which the Court could conclude that any Defendant acted

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with “deliberate indifference” to a serious risk of harm to Plaintiff. Plaintiff does not

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allege, in any way, that apart from having the “R” suffix that any named Defendant was

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actually aware of any known, specific threats to Plaintiff’s safety. Plaintiff does not

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allege that any of the named Defendants were aware that other inmates allegedly knew of

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Plaintiff’s classification status.2

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Here, the Court finds that Plaintiff fails to allege that any Defendant was aware of

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any facts demonstrating an “obvious” risk and failed to take any action. Farmer, 511 U.S.

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842; see also Lolli v. County of Orange, 351 F.3d 410, 421 (9th Cir. 2003) (“Much like

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recklessness in criminal law, deliberate indifference . . . may be shown by circumstantial

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evidence when the facts are sufficient to demonstrate that a defendant actually knew of a

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risk of harm.”).

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For these reasons, the Court finds Plaintiff’s failure to protect claims against all

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Defendants also must be dismissed for failing to state a claim pursuant to 28 U.S.C.

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§ 1915(e)(2)(b)(ii) and § 1915A(b)(1). Lopez, 203 F.3d at 1126-27; Rhodes, 621 F.3d at

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1004.

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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.
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E.

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Finally, while Rule 15(a)(2) provides that “[t]he court should give leave [to amend]

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freely when justice so requires,” the Court further finds that amendment under the

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circumstances of this case would be futile. See Vasquez v. Los Angeles County, 487 F.3d

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1246, 1258 (9th Cir. 2007) (citing Schmier v. U.S. Court of Appeals for the Ninth Circuit,

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279 F.3d 817, 824 (9th Cir. 2002) (recognizing “[f]utility of amendment” as a proper basis

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for dismissal without leave to amend)).

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III.

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Leave to Amend

Conclusion and Order
Good cause appearing, the Court:
DISMISSES Plaintiff’s Second Amended Complaint for failing to state a claim

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upon which § 1983 relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and

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1915A(b)(1) and DENIES leave to amend as futile.

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The Clerk of Court is instructed to close the file.

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IT IS SO ORDERED.

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DATE: April 26, 2017

_______________________________________
HON. MICHAEL M. ANELLO
United States District Judge

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