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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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

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