Dennis Petillo v. Los Angeles Police Department; Gavin Newsom; Nancy Pelosi; White House; Joe Biden

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DENNIS PETILLO, Case No.: 26-cv-01537-AJB-JLB CDCR #AU-5662, 12 ORDER DISMISSING CIVIL Plaintiff, 13 ACTION FOR FAILURE TO vs. PAY FILING FEE REQUIRED 14 BY 28 U.S.C. § 1914(a) LOS ANGELES POLICE 15 DEPARTMENT; GAVIN NEWSOM; (Doc. No. 1) 16 NANCY PELOSI; WHITE HOUSE; JOE BIDEN, 17 Defendants. 18 19 20 Plaintiff Dennis Petillo, who is proceeding without counsel and incarcerated at Mule 21 Creek State Prison, has filed a civil rights Complaint under 42 U.S.C. § 1983. (Doc. No. 22 1.) Petillo’s handwriting is nearly impossible to read, but as far as the Court can tell, he 23 seeks to hold the Los Angeles Police Department, the Governor of California, a former 24 California Senator and President of the United States for conspiring to murder him. (Id. at 25 4–6.) Regardless of the facially frivolous nature of claims like these, Petillo has not paid 26 the civil filing fee required by 28 U.S.C. § 1914(a), and is not entitled to proceed in forma 27 pauperis (“IFP”) pursuant to 28 U.S.C. § 1915(a). Therefore, the Court DISMISSES his 28 case. 1 I. FAILURE TO PAY FILING FEE OR REQUEST IFP STATUS 2 All parties instituting any civil action, suit or proceeding in any district court of the 3 United States, except an application for writ of habeas corpus, must pay a filing fee of 4 $405. See 28 U.S.C. § 1914(a).1 An action may proceed despite a party’s failure to pay 5 this filing fee only if the party is granted leave to proceed IFP. See Andrews v. Cervantes, 6 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 7 1999). 8 Petillo did not pay the $405 filing fee required to commence civil action pursuant to 9 28 U.S.C. § 1914(a) at the time he filed suit, nor has he filed an application seeking leave 10 to proceed IFP. Therefore, this civil action cannot proceed. See 28 U.S.C. § 1914(a); 11 Andrews, 493 F.3d at 1051. And while the Court would ordinarily grant an unrepresented 12 litigant leave to file an IFP application pursuant 28 U.S.C. § 1915(a), it finds doing so in 13 this case would be futile. This is because, as explained below, Petillo’s litigation history 14 shows he is no longer entitled to that privilege, and his Complaint contains no plausible 15 allegations of imminent danger of serious physical injury at the time of filing. 16 A. Section 1915(g)’s Three-Strikes Rule 17 “To help staunch a ‘flood of non-meritorious’ prisoner litigation, the Prison 18 Litigation Reform Act of 1995 (PLRA) established what has become known as the three- 19 strikes rule.” Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1723 (2020) (quoting Jones v. 20 Bock, 549 U.S. 199, 203 (2007)). “That rule generally prevents a prisoner from bringing 21 suit in forma pauperis (IFP)—that is, without first paying the filing fee—if he has had three 22 or more prior suits ‘dismissed on the grounds that [they were] frivolous, malicious, or 23 fail[ed] to state a claim upon which relief may be granted.’” Id. (quoting 28 U.S.C. 24 § 1915(g)); see also Ray v. Lara, 31 F.4th 692, 697 (9th Cir. 2022). 25

26 1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of 27 $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The additional $52 administrative fee does not apply to persons granted IFP 28 1 When courts “review a dismissal to determine whether it counts as a strike, the style 2 of the dismissal or the procedural posture is immaterial. See Harris v. Mangum, 863 F.3d 3 1133, 1142 (9th Cir. 2017) (“[I]t does not matter whether [plaintiff] might have stated a 4 claim. What matters is that he did not do so.”). The “central question is whether the 5 dismissal ‘rang the PLRA bells of frivolous, malicious, or failure to state a claim.’” El- 6 Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 7 F.3d 607, 615 (4th Cir. 2013)). In other words, “[a] strike-call under Section 1915(g) [] 8 hinges exclusively on the basis for the dismissal, regardless of the decision’s prejudicial 9 effect.” Lomax, 140 S. Ct. at 1724–25. 10 “[T]o qualify as a strike for § 1915(g), a case as a whole, not just some of its 11 individual claims, must be dismissed for a qualifying reason.” Hoffman v. Pulido, 928 F.3d 12 1147, 1152 (9th Cir. 2019) (citing Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 13 F.3d 1048, 1057 (9th Cir. 2016)). “[I]f a case was not dismissed on one of the specific 14 enumerated grounds, it does not count as a strike under § 1915(g).” Harris v. Harris, 935 15 F.3d 670, 673 (9th Cir. 2019). Once a prisoner accumulates three strikes, however, 16 § 1915(g) precludes his ability to proceed IFP in any other civil actions or appeals in federal 17 court unless he “makes a plausible allegation that [he] faced ‘imminent danger of serious 18 physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1051‒52 (quoting 28 U.S.C. 19 § 1915(g)). 20 B. Petillo’s Prior “Strikes” 21 Defendants typically carry the initial burden to produce evidence demonstrating a 22 prisoner is not entitled to proceed IFP, but “in some instances, the district court docket 23 records may be sufficient to show that a prior dismissal satisfies at least one on the criteria 24 under § 1915(g) and therefore counts as a strike.” Andrews v. King, 398 F.3d 1113, 1120 25 (9th Cir. 2005). This is one of those instances, as a review of district court dockets on 26 PACER confirms Petillo is no longer eligible to proceed IFP because while incarcerated, 27 he has had more than three prior prisoner civil actions dismissed for a “qualifying reason” 28 under § 1915(g). Hoffman, 928 F.3d at 1152. 1 Pursuant to Federal Rule of Evidence 201(b)(2), the Court may take judicial notice 2 of the docket records in Petillo’s prior cases. See Andrews, 398 F.3d at 1120; United States 3 v. Raygoza-Garcia, 902 F.3d 994, 1001 (9th Cir. 2018) (“A court may take judicial notice 4 of undisputed matters of public record, which may include court records available through 5 PACER.”). 6 The following records are sufficient to show Petillo has incurred at least eight 7 qualifying strikes: 8 (1) Petillo v. Asuncion, Case No. 2:17-cv-08406-JFW-AS (C.D. Cal. May 29, 2018) (Order dismissing Complaint for failing to state a claim pursuant to 9 Fed. R. Civ. P. 8 and 28 U.S.C. § 1915A(b)) (Doc. No. 5); id., 2018 WL 10 7048224 (C.D. Cal. Nov. 30, 2018) (Report & Recommendation [“R&R”] to dismiss for failure to amend and/or prosecute) (Doc. No. 8); id., (C.D. Cal. 11 Jan. 14, 2019) (Order accepting R&R and dismissing action with prejudice) 12 (Doc. No. 9);2

13 (2) Petillo v. CIA Office of Public Affair, Case No. 2:19-cv-05349-JFW- 14 MAA (C.D. Cal. July 11, 2019) (Order adopting R&R to deny IFP and dismiss case as frivolous, malicious, or for failing to state a claim) (Doc. No. 6); 15

16 (3) Petillo v. Federal Bureau of Investigation, Case No. 2:20-cv-07900- JFW-MAA (C.D. Cal. Sept. 30, 2020) (Order adopting R&R to deny IFP and 17 dismiss Complaint without leave to amend as frivolous) (Doc. No. 10 at 1–2); 18 (4) Petillo v. CDCR RVD Armenta, Case No. 2:20-cv-11004-JFW-MAA 19 (C.D. Cal. Jan. 6, 2021) (Order adopting R&R to deny IFP and dismiss civil 20 action for failure to state a claim) (Doc. No. 6);

21 (5) Petillo v. Zuniga, Case No. 2:21-cv-00535-JFW-MAA (C.D. Cal. Jan. 22 21, 2021) (Order adopting R&R to deny IFP and dismiss Complaint as frivolous and for failing to state a claim) (Doc. No. 4); 23

24 (6) Petillo v. Los Angeles Police Dept., et al., Case No. 2:20-cv-11656- JFW-MAA (C.D. Cal. Jan. 27, 2021) (Order adopting R&R to deny IFP and 25 dismiss complaint as frivolous and for failing to state a claim) (Doc. No. 6); 26

27 2 See Harris, 863 F.3d at 1143(“A prisoner may not avoid incurring strikes simply by declining to 28 1 (7) Petillo v. Morales, Case No. 2:21-cv-07180-JFW-MAA (C.D. Cal. Sept. 10, 2021) (Order adopting R&R to deny IFP and dismiss complaint as 2 frivolous and for failing to state a claim) (Doc. No. 4); and 3 (8) Petillo v. Monique, Case No. 2:21-CV-01996-CKD P, 2022 WL 4 224254, at *3 (E.D. Cal. Jan. 25, 2022) (Order granting IFP and dismissing 5 Complaint with leave to amend for failing to state a claim pursuant to 28 U.S.C. § 1915A(b)(1), (2)) (Doc. No. 7); id. (E.D. Cal. March 8, 2022) (R&R 6 to dismiss civil action for failure to amend) (Doc. No. 11); id., (E.D. Cal. May 7 23, 2022) (Order adopting R&R and dismissing civil action) (Doc. No. 13). 8 Accordingly, because Petillo accumulated these prior qualifying strike dismissals 9 while incarcerated, and as discussed below, fails to make a “plausible allegation” that he 10 faced imminent danger of serious physical injury at the time he filed his Complaint, he is 11 not entitled to the privilege of proceeding IFP in this action. See Cervantes, 493 F.3d at 12 1055; Rodriguez v. Cook, 169 F.3d 1176, 1180 (9th Cir. 1999) (finding that 28 U.S.C. 13 § 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes 14 prisoners with a history of abusing the legal system from continuing to abuse it while 15 enjoying IFP status”); see also Franklin v. Murphy, 745 F.2d 1221, 1231 (9th Cir. 1984) 16 (“[C]ourt permission to proceed IFP is itself a matter of privilege and not right.”).3 17 C. Imminent Danger Exception 18 In order to meet § 1915(g)’s exception, Petillo’s Complaint must contain a “plausible 19 allegation that [he] faced ‘imminent danger of serious physical injury’ at the time of filing.” 20 Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). “Imminent danger” requires 21 an allegation that a harm is “ready to take place,” or “hanging threateningly over one’s 22 head,” id. at 1056, and “cannot be triggered solely by complaints of past injury or 23 24 25 3 In fact, Petillo has been denied IFP privileges pursuant to § 1915(g) in the Southern District of 26 California before. See Petillo v. Donovan Prison San Diego, et al., Case No. 3:23-cv-02038-RSH-AHG (S.D. Cal. Dec. 15, 2023) (Order denying motions to proceed IFP as barred by 28 U.S.C. § 1915(g) and 27 dismissing civil action for failure to pay filing fee required by 28 U.S.C. § 1914(a)) (Doc. No. 11); Petillo v. Armenta, Case No. 3:24-cv-00147-JLS-MSB, 2024 WL 500712, at *3 (S.D. Cal. Feb. 8, 2024) (Doc 28 1 generalized fears of possible future harm.” Hernandez v. Williams, Case No. 3:21-cv- 2 00347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (citing Cervantes, 3 493 F.3d at 1053). 4 Petillo is currently incarcerated at Mule Creek State Prison but his Complaint does 5 not contain any coherent or plausible allegations to suggest he was in “imminent danger” 6 at the time he filed it. Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, 7 as best the Court can determine, Petillo appears to believe the LAPD has conspired with 8 the CIA, the Governor of California, Nancy Pelosi, the White House, and former U.S. 9 President Joe Biden to murder him. (See Compl. at 4–6.) But these types of “[o]verly 10 speculative,” “fanciful,” “ridiculous,” and facially delusional assertions do not warrant an 11 exception under section 1915(g). See Cervantes, 493 F.3d at 1057 n.11 (citing Ciarpaglini 12 v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (“Courts … deny leave to proceed IFP when a 13 prisoner’s claims of imminent danger are conclusory or ridiculous.”); Martin v. Shelton, 14 319 F.3d 1048, 1048 (8th Cir. 2003) (declining to find imminent danger exception based 15 on “conclusory assertions that defendants were trying to kill [the inmate] by forcing him 16 to work in extreme [weather] conditions.”)); see also Holz v. McFadden, 2010 WL 17 3069745, at *3 (C.D. Cal. May 21, 2010) (“Merely alleging that the government is going 18 to murder you is not enough to pass through the [imminent danger] gateway.”); In re 19 Gonzales, 2008 WL 666465, at *1‒2 (N.D. Cal. March 6, 2008) (finding prisoner’s 20 allegations of genetic experimentation, food poisoning, radiation, governmental 21 monitoring, and a “campaign to kill him” too implausible and delusional to meet 22 § 1915(g)’s exception for imminent danger); Sierra v. Woodford, 2010 WL 1657493 at *3 23 (E.D. Cal. April 23, 2010) (finding “long, narrative, rambling statements regarding a cycle 24 of violence, and vague references to motives to harm” insufficient to show Plaintiff faced 25 an “ongoing danger” as required by Cervantes). 26 “The right to proceed in forma pauperis is not an unqualified one. […] It is a 27 privilege, rather than a right.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) 28 (citations omitted). Section 1915(g) “does not prevent all prisoner from accessing the 1 |}courts; it only precludes prisoners with a history of abusing the legal system from 2 ||continuing to abuse it while enjoying IFP status.” Rodriguez, 169 F.3d at 1180. Thus, 3 || because Petillo’s litigation history shows he is one of those prisoners, and he does not 4 plausibly allege to have been in “imminent danger of serious physical injury” at the time 5 filed his Complaint, he not entitled to proceed IFP in this action. See Cervantes, 493 6 || F.3d at 1055. 7 CONCLUSION 8 For the reasons explained, the Court DISMISSES this civil action sua sponte 9 || without prejudice for failing to prepay the $405 civil and administrative filing fees required 10 28 U.S.C. § 1914(a); DENIES Petillo leave to file a motion to proceed in forma 11 || pauperis pursuant to 28 U.S.C. § 1915(g); CERTIFIES that any IFP appeal from this 12 || Order would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and DIRECTS 13 || the Clerk of the Court to close the file. 14 IT IS SO ORDERED. 15 ||Dated: May 14, 2026 © 16 Hon, Anthony J.Battaglia 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 7 a