United States District Court, S.D. California
ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILING
TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND
MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE
August 1, 2016, Isaiah Joel Petillo
(“Plaintiff”), a prisoner incarcerated in
Corcoran State Prison located in Corcoran, California, and
proceeding pro se, filed a civil rights complaint
(“Compl.”) pursuant to 42 U.S.C. § 1983.
(Doc. No. 1.) Plaintiff alleged that prison officials at five
separate prisons violated his constitutional rights when they
classified him with an “R” suffix. (Compl., Doc.
No. 1 at 1, 10.) Plaintiff has named thirty one (31)
defendants in this matter. (Id. at 1-9.) Plaintiff
did not prepay the civil filing fee required by 28 U.S.C.
§ 1914(a) when he filed his Complaint; instead, he filed
a Motion to Proceed In Forma Pauperis (“IFP”)
pursuant to 28 U.S.C. § 1915(a) (Doc. No. 4).
October 24, 2016, Plaintiff's IFP motion was granted but
his Complaint was simultaneously dismissed for failing to
state a claim upon which relief could be granted. (Doc. No. 7
at 15-16.) On November 28, 2016, Plaintiff filed his First
Amended Complaint (“FAC”) and later filed a
“Declaration in Support of Complaint.” (Doc. Nos.
8, 10.) However, the Court once again found that
Plaintiff's FAC failed to state a claim upon which relief
could be granted and dismissed his FAC. (Doc. No. 11 at
9-10.) Plaintiff was again granted leave to file an amended
pleading in order to correct the deficiencies of pleading
identified in the Court's Order. (Id.) On March
9, 2017, Plaintiff filed his Second Amended Complaint
(“SAC”). (Doc. No. 12.)
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)
Standard of Review
Plaintiff is a prisoner and is proceeding IFP, his SAC
requires a pre-answer screening pursuant to 28 U.S.C. §
1915(e)(2) and § 1915A(b). Under these statutes, the
Court must sua sponte dismiss a prisoner's IFP complaint,
or any portion of it, which is frivolous, malicious, fails to
state a claim, or seeks damages from defendants who are
immune. See Lopez v. Smith, 203 F.3d 1122, 1126-27
(9th Cir. 2000) (en banc) (discussing 28 U.S.C. §
1915(e)(2)); Rhodes v. Robinson, 621 F.3d 1002, 1004
(9th Cir. 2010) (discussing 28 U.S.C. § 1915A(b)).
“The purpose of [screening] is ‘to ensure that
the targets of frivolous or malicious suits need not bear the
expense of responding.'” Nordstrom v.
Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
Wheeler v. Wexford Health Sources, Inc., 689 F.3d
680, 681 (7th Cir. 2012)).
standard for determining whether a plaintiff has failed to
state a claim upon which relief can be granted under §
1915(e)(2)(B)(ii) is the same as the Federal Rule of Civil
Procedure 12(b)(6) standard for failure to state a
claim.” Watison v. Carter, 668 F.3d 1108, 1112
(9th Cir. 2012); see also Wilhelm v. Rotman, 680
F.3d 1113, 1121 (9th Cir. 2012) (noting that screening
pursuant to § 1915A “incorporates the familiar
standard applied in the context of failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6)”). Rule
12(b)(6) requires a complaint to “contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted); Wilhelm, 680 F.3d at 1121.
factual allegations are not required, but “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678. “Determining whether a
complaint states a plausible claim for relief [is] . . . a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Id. The “mere possibility of misconduct”
or “unadorned, the defendant-unlawfully-harmed me
accusation[s]” fall short of meeting this plausibility
standard. Id.; see also Moss v. U.S. Secret
Service, 572 F.3d 962, 969 (9th Cir. 2009).
preliminary matter, the Court finds that Plaintiff's SAC
fails to comply with Rule 8 of the Federal Rules of Civil
Procedure. Rule 8 of the Federal Rules of Civil Procedure
provides that in order to state a claim for relief in a
pleading it must contain “a short and plain statement
of the grounds for the court's jurisdiction” and
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(1) & (2).
Plaintiff's SAC offers far less factual allegations than
his Complaint. Instead of setting for specific factual
allegations to support his claims, Plaintiff cites to his
original Complaint. (See SAC at 2-6). However,
Plaintiff was instructed by this Court that if he elected to
“file an Amended Complaint, it must be complete by
itself without reference to his original pleading.”
(Doc. No. 11 at 9-10 citing S.D. Cal. CivLR 15.1;
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (“[A]n
amended pleading supersedes the original.”); Lacey
v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012)
(noting that claims dismissed with leave to amend which are
not re-alleged in an amended pleading may be
“considered waived if not repled.”). Plaintiff
failed to follow this instruction in both his FAC and SAC.
addition, throughout his SAC, Plaintiff simply lists a number
of Defendants without connecting them to any specific factual
allegation. (See SAC at 6-8.) “The pleading
standard Rule 8 announces does not require ‘detailed
factual allegations, ' but it demands more than an
unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555).
the Court finds that Plaintiff's SAC plainly falls short
of complying with Rule 8 and the Court's local rules, and