1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, No. 1:18-cv-00217-NONE-GSA (PC) 12 Plaintiff, ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND 13 v. GRANTING DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA 14 GALLAGHER, et al., PAUPERIS STATUS 15 Defendants. (Doc. Nos. 31, 41) 16 17 Plaintiff Isaiah J. Petillo, proceeding pro se, brought this 42 U.S.C. § 1983 action against 18 prison officials at the Calipatria State Prison for violating his Eighth Amendment rights. (Doc. 19 Nos. 1; 18 at 4–5.) On March 27, 2018, the court granted plaintiff’s motion to proceed in forma 20 pauperis. (Doc. Nos. 6, 8.) Approximately twenty-one months later, defendants moved to revoke 21 plaintiff’s IFP status, arguing that four of plaintiff’s prior actions were dismissed as “frivolous” or 22 “malicious” as defined by 28 U.S.C. § 1915(g). (Doc. No. 31.) This matter was referred to a 23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 “Under the Prison Litigation Reform Act, a prisoner may not proceed in forma pauperis 25 after having three prior actions dismissed for certain enumerated reasons (these are called 26 ‘strikes’),” unless he is “under imminent danger of serious physical injury.” Knapp v. Hogan, 27 738 F.3d 1106, 1108 (9th Cir. 2013) (citing 28 U.S.C. § 1915(g)). On July 8, 2020, the assigned 28 magistrate judge found that plaintiff was not under imminent danger when he filed his complaint 1 in this action, and proceeded to consider whether the dismissals in the four previous actions 2 brought by plaintiff—Petillo v. Bolan et al., No. 2:16-cv-02513-CJC-JPR (C.D. Cal.) (“Bolan I”), 3 Petillo v. Bolan et al., No. 17-55193 (9th Cir.) (“Bolan II”), Petillo v. Kearnan et al., No. 1:19- 4 cv-01950-MMA-JMA (S.D. Cal.), and Petillo v. Castro, et al., No. 3:16-cv-02457-WQH-BLM 5 (S.D. Cal.), (Doc. No. 31-2, Exs. A–D)—were appropriately counted as “strikes” for purposes of 6 § 1915(g). (Doc. No. 41 at 8–13.) Finding only that the dismissal orders in Kearnan and Castro 7 were properly counted as strikes, the magistrate judge recommended that defendants’ motion to 8 revoke plaintiff’s IFP status be denied. (Id.) Defendants filed objections on July 22, 2020, 9 arguing that the dismissals in Bolan I and Bolan II should be counted as strikes. (Doc. No. 42 at 10 1–3.) Defendants’ argument as to the dismissal in Bolan I is well-taken. 11 With respect to Bolan I, the magistrate judge reasoned that defendants had failed to come 12 forward with evidence establishing that the case was dismissed pursuant to the decision in Heck v. 13 Humphrey, 512 U.S. 477 (1994), and that therefore the dismissal “may possibly not be counted as 14 a strike under § 1915(g).” (Doc. No. 41 at 10) (emphasis added). In Heck, a state prisoner 15 plaintiff brought a § 1983 suit for damages by challenging the constitutionality of his conviction, 16 even though the plaintiff’s conviction had not been reversed, invalidated or otherwise set aside. 17 Heck, 512 U.S. at 478–79. Because the plaintiff’s conviction remained valid, the district court 18 dismissed the plaintiff’s § 1983 suit for damages, and the Seventh Circuit affirmed. Id. at 479– 19 80. In affirming, the Supreme Court held that 20 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 21 whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has 22 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 23 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. 24 25 Id. at 486–87 (emphasis added). 26 The Ninth Circuit has held that: 27 A Heck dismissal is not categorically frivolous—that is, having “no basis in law or fact,” [Andrews v. ]King, 398 F.3d [1113,] at 1121 28 [(9th Cir. 2005)] (internal quotation marks and citation omitted)— 1 because plaintiffs may have meritorious claims that do not accrue until the underlying criminal proceedings have been successfully 2 challenged. See Heck, 512 U.S. at 489–90, 114 S. Ct. 2364. For this reason, a Heck dismissal is made without prejudice, such that a 3 prisoner may refile the complaint once his conviction has been overturned. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 4 (9th Cir. 1995) (per curiam). Similarly, a Heck dismissal cannot be characterized as malicious, unless the court specifically finds that 5 the complaint was “filed with the intention or desire to harm another.” King, 398 F.3d at 1121 (internal quotation marks and 6 citation omitted). 7 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016). The Ninth 8 Circuit in Washington recognized that “[w]hen we are presented with multiple claims within a 9 single action, we assess a PLRA strike only when the ‘case as a whole’ is dismissed for a 10 qualifying reason under the Act” (Washington, 833 F.3d at 1057 (quoting Andrews v. Cervantes, 11 493 F.3d 1047, 1054 (9th Cir. 2007)) and that where, as in that case, a plaintiff sought both 12 money damages and relief from his criminal conviction the dismissal of such a “mixed claim does 13 not count as a strike under the PLRA. Id.; see also Burton v. Lee, 732 Fed. Appx. 567, 570 (9th 14 Cir. May 2, 2018)1 However, the Ninth Circuit made clear in Washington that a dismissal of an 15 action pursuant to Heck “may constitute a PLRA strike for failure to state a claim when Heck’s 16 bar to relief is obvious from the face of the complaint, and the entirety of the complaint is 17 dismissed for a qualifying reason under the PLRA,” such as a “Rule 12(b)(6) dismissal[] for 18 failure to state a claim.” 833 F.3d at 1055–56. In so concluding, the Ninth Circuit distinguished 19 “a civil suit seeking purely money damages related to an allegedly unlawful conviction” and one 20 in which “a prisoner seeks injunctive relief challenging his sentence or conviction—and further 21 seeks monetary relief for damages attributable to the same sentence or conviction.” Id. at 1057. 22 The court in Washington concluded that where the first type of suit, in which purely money 23 damages are sought, is dismissed pursuant to an obvious Heck bar it may be counted as a strike 24 for purposes of § 1915(g), but where the second type of suit, seeking damages and injunctive 25 relief with respect to a criminal conviction sounding in habeas, “is not subject to the PLRA’s 26 regime” and may not be counted as a strike dismissal. Id. 27 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36–3(b).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ISAIAH J. PETILLO, No. 1:18-cv-00217-NONE-GSA (PC) 12 Plaintiff, ORDER DECLINING TO ADOPT FINDINGS AND RECOMMENDATIONS AND 13 v. GRANTING DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IN FORMA 14 GALLAGHER, et al., PAUPERIS STATUS 15 Defendants. (Doc. Nos. 31, 41) 16 17 Plaintiff Isaiah J. Petillo, proceeding pro se, brought this 42 U.S.C. § 1983 action against 18 prison officials at the Calipatria State Prison for violating his Eighth Amendment rights. (Doc. 19 Nos. 1; 18 at 4–5.) On March 27, 2018, the court granted plaintiff’s motion to proceed in forma 20 pauperis. (Doc. Nos. 6, 8.) Approximately twenty-one months later, defendants moved to revoke 21 plaintiff’s IFP status, arguing that four of plaintiff’s prior actions were dismissed as “frivolous” or 22 “malicious” as defined by 28 U.S.C. § 1915(g). (Doc. No. 31.) This matter was referred to a 23 United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 24 “Under the Prison Litigation Reform Act, a prisoner may not proceed in forma pauperis 25 after having three prior actions dismissed for certain enumerated reasons (these are called 26 ‘strikes’),” unless he is “under imminent danger of serious physical injury.” Knapp v. Hogan, 27 738 F.3d 1106, 1108 (9th Cir. 2013) (citing 28 U.S.C. § 1915(g)). On July 8, 2020, the assigned 28 magistrate judge found that plaintiff was not under imminent danger when he filed his complaint 1 in this action, and proceeded to consider whether the dismissals in the four previous actions 2 brought by plaintiff—Petillo v. Bolan et al., No. 2:16-cv-02513-CJC-JPR (C.D. Cal.) (“Bolan I”), 3 Petillo v. Bolan et al., No. 17-55193 (9th Cir.) (“Bolan II”), Petillo v. Kearnan et al., No. 1:19- 4 cv-01950-MMA-JMA (S.D. Cal.), and Petillo v. Castro, et al., No. 3:16-cv-02457-WQH-BLM 5 (S.D. Cal.), (Doc. No. 31-2, Exs. A–D)—were appropriately counted as “strikes” for purposes of 6 § 1915(g). (Doc. No. 41 at 8–13.) Finding only that the dismissal orders in Kearnan and Castro 7 were properly counted as strikes, the magistrate judge recommended that defendants’ motion to 8 revoke plaintiff’s IFP status be denied. (Id.) Defendants filed objections on July 22, 2020, 9 arguing that the dismissals in Bolan I and Bolan II should be counted as strikes. (Doc. No. 42 at 10 1–3.) Defendants’ argument as to the dismissal in Bolan I is well-taken. 11 With respect to Bolan I, the magistrate judge reasoned that defendants had failed to come 12 forward with evidence establishing that the case was dismissed pursuant to the decision in Heck v. 13 Humphrey, 512 U.S. 477 (1994), and that therefore the dismissal “may possibly not be counted as 14 a strike under § 1915(g).” (Doc. No. 41 at 10) (emphasis added). In Heck, a state prisoner 15 plaintiff brought a § 1983 suit for damages by challenging the constitutionality of his conviction, 16 even though the plaintiff’s conviction had not been reversed, invalidated or otherwise set aside. 17 Heck, 512 U.S. at 478–79. Because the plaintiff’s conviction remained valid, the district court 18 dismissed the plaintiff’s § 1983 suit for damages, and the Seventh Circuit affirmed. Id. at 479– 19 80. In affirming, the Supreme Court held that 20 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions 21 whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has 22 been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such 23 determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. 24 25 Id. at 486–87 (emphasis added). 26 The Ninth Circuit has held that: 27 A Heck dismissal is not categorically frivolous—that is, having “no basis in law or fact,” [Andrews v. ]King, 398 F.3d [1113,] at 1121 28 [(9th Cir. 2005)] (internal quotation marks and citation omitted)— 1 because plaintiffs may have meritorious claims that do not accrue until the underlying criminal proceedings have been successfully 2 challenged. See Heck, 512 U.S. at 489–90, 114 S. Ct. 2364. For this reason, a Heck dismissal is made without prejudice, such that a 3 prisoner may refile the complaint once his conviction has been overturned. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 4 (9th Cir. 1995) (per curiam). Similarly, a Heck dismissal cannot be characterized as malicious, unless the court specifically finds that 5 the complaint was “filed with the intention or desire to harm another.” King, 398 F.3d at 1121 (internal quotation marks and 6 citation omitted). 7 Washington v. Los Angeles Cty. Sheriff’s Dep’t, 833 F.3d 1048, 1055 (9th Cir. 2016). The Ninth 8 Circuit in Washington recognized that “[w]hen we are presented with multiple claims within a 9 single action, we assess a PLRA strike only when the ‘case as a whole’ is dismissed for a 10 qualifying reason under the Act” (Washington, 833 F.3d at 1057 (quoting Andrews v. Cervantes, 11 493 F.3d 1047, 1054 (9th Cir. 2007)) and that where, as in that case, a plaintiff sought both 12 money damages and relief from his criminal conviction the dismissal of such a “mixed claim does 13 not count as a strike under the PLRA. Id.; see also Burton v. Lee, 732 Fed. Appx. 567, 570 (9th 14 Cir. May 2, 2018)1 However, the Ninth Circuit made clear in Washington that a dismissal of an 15 action pursuant to Heck “may constitute a PLRA strike for failure to state a claim when Heck’s 16 bar to relief is obvious from the face of the complaint, and the entirety of the complaint is 17 dismissed for a qualifying reason under the PLRA,” such as a “Rule 12(b)(6) dismissal[] for 18 failure to state a claim.” 833 F.3d at 1055–56. In so concluding, the Ninth Circuit distinguished 19 “a civil suit seeking purely money damages related to an allegedly unlawful conviction” and one 20 in which “a prisoner seeks injunctive relief challenging his sentence or conviction—and further 21 seeks monetary relief for damages attributable to the same sentence or conviction.” Id. at 1057. 22 The court in Washington concluded that where the first type of suit, in which purely money 23 damages are sought, is dismissed pursuant to an obvious Heck bar it may be counted as a strike 24 for purposes of § 1915(g), but where the second type of suit, seeking damages and injunctive 25 relief with respect to a criminal conviction sounding in habeas, “is not subject to the PLRA’s 26 regime” and may not be counted as a strike dismissal. Id. 27 1 Citation to this unpublished Ninth Circuit opinion is appropriate pursuant to Ninth Circuit Rule 28 36–3(b). 1 Applying the decisions in Heck and Washington here, the pending findings and 2 recommendations concluded that in Bolan I “the entirety of the complaint was dismissed for a 3 qualifying reason under § 1915(g),” but that defendants had failed to show that plaintiff in Bolan I 4 had sought purely “damages as opposed to injunctive relief.” (Doc. No. 41 at 10.) Accordingly, 5 the magistrate judge found that defendants failed to establish that the dismissal in Bolan I 6 constituted a strike dismissal. (Id.) In their objections to the pending findings and 7 recommendations, defendants have submitted a copy of plaintiff’s complaint in Bolan I showing 8 that plaintiff in that case sought purely damages and did not seek injunctive relief. (See Doc. No. 9 42-1 at 27) (in terms of “relief” plaintiff seeking “$100 million dollars” and “is requesting the 10 court for the def’s [sic] to pay me $100 million $ [sic] held accountable for their actions. The 11 Police Dept shall be held liable too. I need to be compensated for my pain & suffering, due 12 process civil rights [sic]. Seeking punitive damages.”). The court has reviewed plaintiff’s 13 complaint filed in Bolan I and agrees with defendants’ characterization of the purely money 14 damages relief it sought. Pursuant to the decisions in Heck and Washington, the court finds that 15 defendants have now met their burden of establishing that the dismissal order in Bolan I is 16 properly counted as a strike. Combined with the other two strike dismissals suffered by plaintiff 17 in Kearnan and Castro, plaintiff has reached the three-strikes limit under § 1915(g), thereby 18 disqualifying him from maintaining his IFP status since he has failed to claim or establish that he 19 qualifies to proceed IFP because he was in imminent danger at the time he filed his complaint. 20 Accordingly, 21 1. The court DECLINES to adopt the findings and recommendations issued on July 8, 2020 22 (Doc. No. 41)2; 23
24 2 Although the undersigned has concluded that the findings and recommendations should not be adopted because the dismissal order in Bolan I does count as a strike based upon the showing 25 made by defendants in their objections, the magistrate judge is to be commended for ensuring that the defendants satisfied their burden of establishing the existence of three, strike qualifying 26 dismissals which they failed to do in their initial motion to revoke plaintiff’s IFP status. 27 As the Ninth Circuit has cautioned, courts are to “strictly and narrowly” construe the language of § 1915(g) in the interest of justice. Harris v. Harris, 935 F.3d 670, 675 (9th Cir. 2019); see also 28 Ray v. Hosey, No. 1:20-cv-01076-DAD-GSA, 2021 WL 568159, at *3 (E.D. Cal. Feb. 16, 2021). 1 2. Defendants’ motion to revoke plaintiff's IFP status (Doc. No. 31) is GRANTED; 2 3. The March 27, 2018 order granting plaintiff’s motion to proceed IFP (Doc. No. 8) is 3 VACATED; 4 4. Plaintiff ORDERED to pay the $400.00 filing fee in full within thirty (30) days 5 following the date of service of this order, if he wants to proceed with this action; 6 5. Plaintiff is forewarned that failure to pay the filing fee within the specified time will result 7 in the dismissal of this action; 8 6. The Clerk of the Court is directed to serve a copy of this order on the California 9 Department of Corrections and Rehabilitation and the Financial Department of the U.S. 10 District Court for the Eastern District of California; and 11 7. This matter is referred back to the assigned Magistrate Judge for further proceedings 12 consistent with this order. 13 | IT IS SO ORDERED. a - Dated: _ March 26, 2021 J aL Al i 7 a 15 UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28