(PC) Petillo v. Lynch

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DENNIS PETILLO, JR., Case No. 2:24-cv-0421-JDP (P) 12 Plaintiff, 13 v. ORDER; FINDINGS AND RECOMMENDATIONS 14 JEFF LYNCH, et al.,

15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, brings this action against various supervisory 18 defendants at California State Prison – Sacramento. ECF No. 13. I screened his original 19 complaint and dismissed it because it was incomprehensible, and I also granted his application to 20 proceed in forma pauperis. ECF No. 7. Plaintiff filed amended complaints, ECF Nos. 10 & 11, 21 which I also screened and dismissed because they were unintelligible. ECF No. 12 at 3.1 After 22 review of plaintiff’s second amended complaint, I recommend that it be dismissed without leave 23 to amend for failure to state a claim. 24 1 I also informed plaintiff that he was a “three-striker” under the Prison Litigation Reform 25 Act, and instructed him to explain why, despite this status, he should be allowed to proceed in forma pauperis. ECF No. 12 at 1-2. Plaintiff has had at least three cases dismissed for failure to 26 state a claim: (1) Petillo v. Federal Bureau of Investigation, No. 2:20-cv-07900-JFW-MAA (C.D. 27 Cal. Sept. 30, 2020); (2) Petillo v. CDCR, No. 2:20-cv-11004-JFW-MAA (C.D. Cal. Jan. 6, 2021); (3) Petillo v. Zuniga, No. 2:21-cv-00535-JFW-MAA (C.D. Cal. Jan. 21, 2021). Plaintiff 28 fails to address this issue in his second amended complaint. See ECF No. 13. 1 Screening and Pleading Requirements 2 A federal court must screen the complaint of any claimant seeking permission to proceed 3 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 4 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 5 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 6 relief. Id. 7 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 8 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 9 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 10 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 11 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 12 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 13 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 14 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 15 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 16 n.2 (9th Cir. 2006) (en banc) (citations omitted). 17 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 18 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 19 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 20 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 21 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 22 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 23 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 24 Analysis 25 Plaintiff’s second amended complaint remains incomprehensible. Plaintiff purports to 26 bring Eighth and Fourteenth Amendment claims based on threats to his safety and excessive 27 force, but his allegations are illegible. ECF No. 13 at 3-4. Plaintiff’s allegations mention 28 terroristic threats, staff misconduct, deprivation of property, and equal protection, but these 1 phrases are intermingled between sentences referencing slavery, Malcolm X, poetry, and Dianne 2 Feinstein. See id. The exhibits plaintiff attached to his second amended complaint do not help 3 illuminate his purported claims. See generally id. at 6-8; see also ECF No. 15. In some exhibits, 4 plaintiff mentions deliberate indifference to medical needs, and that a doctor was disrespectful to 5 him, but he makes no additional intelligible allegations related to this potential claim. See ECF 6 No. 13 at 6-8. In other exhibits, plaintiff states that he suffered from torture, discrimination, and 7 prejudice, but gives no factual support for these allegations and moves to talking about witchcraft 8 and mind control. See ECF No. 15. None of plaintiff’s references is sufficiently explained, and 9 the second amended complaint cannot proceed as drafted. Plaintiff has been given numerous 10 opportunities to cure the deficiencies in his complaint, and it does not appear that further 11 amendments would be fruitful. As such, I recommend plaintiff’s second amended complaint be 12 dismissed without leave to amend. See Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 13 1988) (per curiam) (“Dismissal of a pro se complaint without leave to amend is proper only if it is 14 absolutely clear that the deficiencies of the complaint could not be cured by amendment.”) 15 (internal quotation marks and citations omitted). 16 Accordingly, it is ORDERED that the Clerk of Court is directed to assign a district judge 17 to this action. 18 Further, it is RECOMMENDED that plaintiff’s second amended complaint, ECF No. 13, 19 be DISMISSED without leave to amend and the Clerk of Court be directed to close this action. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 25 objections shall be served and filed within fourteen days after service of the objections. The 26 parties are advised that failure to file objections within the specified time may waive the right to 27 appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez 28 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 1 | 1718 SO ORDERED. 3 ( — Dated: __April 15, 2025 ssn (aioe 4 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 7 g 9 10 il 12 3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28