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Petillo v. Kearnan

United States District Court, S.D. California

April 26, 2017

ISAIAH JOEL PETILLO, CDCR #T-44601, Plaintiff,
v.
SCOTT KEARNAN, et al. Defendants.

          ORDER DISMISSING SECOND AMENDED COMPLAINT FOR FAILING TO STATE A CLAIM PURSUANT TO 28 U.S.C. § 1915(e)(2) AND § 1915A(b)

          HON. MICHAEL M. ANELLO UNITED STATES DISTRICT JUDGE

         I. Procedural History

         On 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[1]. (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).

         On 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.)

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

         A. Standard of Review

         Because 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)).

         “The 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.

         Detailed 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).

         B. Rule 8

         As a 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).

         Here, 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.

         In 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).

         Thus, the Court finds that Plaintiff's SAC plainly falls short of complying with Rule 8 and the Court's local rules, and ...


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