United States District Court, E.D. California
ISAIAH J. PETILLO, Plaintiff,
REYNALDO JASSO, et al., Defendants.
ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN
DISTRICT JUDGE TO ACTION FINDINGS AND RECOMMENDATIONS
RECOMMENDING PLAINTIFF'S MOTION FOR LEAVE TO PROCEED IN
FORMA PAUPERIS BE DENIED (ECF NO. 2) THIRTY (30) DAY
Isaiah J. Petillo is a state prisoner proceeding pro
se in this civil rights action pursuant to 42 U.S.C.
§ 1983. Plaintiff initiated this action on July 3, 2019.
(ECF No. 1)
before the Court is Plaintiff's application to proceed
in forma pauperis pursuant to 28 U.S.C. § 1915,
filed on July 3, 2019. (ECF No. 2.)
Prison Litigation Reform Act of 1995 (“PLRA”) was
enacted “to curb frivolous prisoner complaints and
appeals.” Silva v. Di Vittorio, 658 F.3d 1090,
1099-1100 (9th Cir. 2011). 28 U.S.C. § 1915(g) provides
that: “In no event shall a prisoner bring a civil
action . . . under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any
facility, brought an action or appeal in a court of the
United States that was dismissed on the grounds that it is
frivolous, malicious, or fails to state a claim upon which
relief may be granted, unless the prisoner is under imminent
danger of serious physical injury.” Therefore, if a
prisoner has incurred three or more “strikes”
(i.e., three or more cases that were dismissed on
the grounds that the cases were frivolous, malicious, or
failed to state a claim upon which relief may be granted)
before filing a new civil action, the prisoner is precluded
from proceeding in forma pauperis in the new civil
action unless the complaint makes a plausible allegation that
the prisoner faced “imminent danger of serious physical
injury” at the time the complaint was filed.
Andrews v. Cervantes, 493 F.3d 1047, 1053 (9th Cir.
the Court finds that Plaintiff has incurred three or more
“strikes” under § 1915(g) prior to filing
the instant civil action. The Court take judicial notice of
the following cases: (1) Petillo v. Bolan, Case No.
2:16-cv-02513-CJC-JPR (C.D. Cal.) (dismissed on January 5,
2017 for failure to state a claim, following a screening
order stating that all of Plaintiff's claims are barred
by Heck v. Humphrey, 512 U.S. 477 (1994), and that
Plaintiff only sought monetary relief); (2) Petillo v.
Kearnan, Case No. 3:16-cv-01950-MMA-JMA (S.D. Cal.)
(dismissed on April 28, 2017 for failure to state a claim);
(3) Petillo v. Castro, Case No.
3:16-cv-02457-WQH-BLM (S.D. Cal.) (dismissed on July 14, 2017
for failure to state a claim); and (4) Petillo v.
Jasso, Case No. 1:18-cv-01188-AWI-JLT (E.D. Cal.)
(dismissed on June 10, 2019 for failure to exhaust
administrative remedies, following a screening order stating
Plaintiff's failure to exhaust administrative remedies
was clear from the face of the operative complaint). See
Harris v. Mangum, 863 F.3d 1133, 1142 (9th Cir. 2017)
(“[W]hen we review a dismissal to determine whether it
counts as a strike, the style of the dismissal or the
procedural posture is immaterial. Instead, the central
question is whether the dismissal rang the PLRA bells of
frivolous, malicious, or failure to state a claim.”
(citation and internal quotation marks omitted));
Washington v. L.A. County Sheriff's Dep't,
833 F.3d 1048, (9th Cir. 2016) (stating that a dismissal
under Heck qualifies as a strike under §
1915(g) “for failure to state a claim when
Heck's bar to relief is obvious from the face of
the complaint, and the entirety of the complaint is dismissed
for a qualifying reason under the PLRA”);
El-Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir.
2016) (stating that a dismissal for failure to exhaust
administrative remedies counts as a strike under §
1915(g) if the failure to exhaust is apparent from the face
of the complaint).
Plaintiff's motion to proceed in forma pauperis
must be denied unless his complaint makes a plausible
allegation that he faced “imminent danger of serious
physical injury” at the time that he filed his
complaint on July 3, 2019. Andrews, 493 F.3d at
1053-56. In his complaint, Plaintiff alleges that, on July
18, 2018, Correctional Officers Jasso and Ochoa used
excessive force on him. Plaintiff further alleges that, on
approximately July 27, 2018, Correctional Officer Ochoa
threatened to assault him. However, as these events are
alleged to have occurred approximately a year before the
instant complaint was filed and Plaintiff has not alleged
that he is in any “ongoing danger” of serious
physical injury, Plaintiff's complaint fails to
demonstrate that he was in imminent danger of serious
physical injury at the time he filed his complaint.
Andrews, 493 F.3d at 1056-57. Therefore, since
Plaintiff has not satisfied the imminent danger exception to
three-strikes rule of § 1915(g), Plaintiff's motion
to proceed in forma pauperis must be denied. If
Plaintiff wishes to proceed with this action, Plaintiff must
pre-pay the $400.00 filing fee in full.
ORDER AND RECOMMENDATIONS
the Court HEREBY ORDERS the Clerk of the Court to randomly
assign a Fresno District Judge to this action.
IT IS HEREBY RECOMMENDED that:
1. Plaintiff's motion to proceed in forma
pauperis, (ECF No. 2), be DENIED, pursuant to 28 U.S.C.
§ 1915(g); and
2. Plaintiff be ordered to pay the $400.00 filing fee in full
in order to proceed with this action.
Findings and Recommendations will be submitted to the United
States District Judge assigned to the case, pursuant to the
provisions of Title 28 U.S.C. § 636(b)(1). Within thirty
(30) days after being served with these Findings and
Recommendations, Plaintiff may file written objections with
the court. The document should be captioned “Objections
to Magistrate Judge's Findings and Recommendation.”
Plaintiff is advised that the failure to file objections
within the specified time may result in the waiver of the
“right to challenge the magistrate's ...