Petillo v. Armenta

Opinion

DENNIS PETILLO, JR., Case No. 24-CV-147 JLS (MSB) CDCR #AU-5662, ORDER DENYING MOTIONS TO Plaintiff, PROCEED IN FORMA PAUPERIS AS vs. BARRED BY 28 U.S.C. § 1915(g) AND DISMISSING CIVIL ACTION

WITHOUT PREJUDICE FOR FRANCISCO ARMENTA, RJD Warden; FAILURE TO PAY FILING FEE COVELL, RJD Warden; POLLARD, RJD REQUIRED BY WARDEN; VENDER SMITH, Captain 28 U.S.C. § 1914(a) Lieutenant,

Defendants. (ECF Nos. 2, 7) Plaintiff Dennis Petillo, Jr., a state prisoner currently incarcerated at California State Prison – Sacramento (“SAC”) and proceeding without counsel, has filed a civil rights action pursuant to 42 U.S.C. § 1983. His Complaint (“Compl.,” ECF No. 1) is accompanied by several supplemental documents, exhibits, and two Motions to Proceed In Forma Pauperis (“IFP Mots.,” ECF Nos. 2, 7) brought pursuant to 28 U.S.C. § 1915(a). Petillo’s Complaint is difficult to read, but—as far as the Court can tell—he alleges three wardens and a captain or lieutenant at Richard J. Donovan Correctional Facility (“RJD”) in San Diego engaged in a terrorist and racist plot to have him murdered while he was incarcerated there in 2020. See Compl. at 2‒3, 7. All parties instituting any civil action, suit, or proceeding in a district court of the United States, except an application for writ of habeas corpus, must pay a filing fee of $350 fee, and those not granted leave to proceed in forma pauperis (“IFP”) must pay an additional administrative fee of $55. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff. Dec. 1, 2023). The action may proceed despite a plaintiff’s failure to prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). For prisoners like Plaintiff, however, the Prison Litigation Reform Act (“PLRA”) amended 28 U.S.C. § 1915 to preclude the privilege to proceed IFP when: [a] 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 can be granted, unless the prisoner is under imminent danger of serious physical injury. 28 U.S.C. § 1915(g). “This subdivision is commonly known as the ‘three strikes’ provision.” Andrews v. King, 398 F.3d 1113, 1116 n.1 (9th Cir. 2005). Once a prisoner has accumulated three strikes, he is prohibited by § 1915(g) from pursuing any other IFP action in federal court unless he can show he is facing “imminent danger of serious physical injury.” See 28 U.S.C. § 1915(g); Cervantes, 493 F.3d at 1055 (noting § 1915(g)’s exception for IFP complaints which “make[] a plausible allegation that the prisoner faced ‘imminent danger of serious physical injury’ at the time of filing.”) “‘Strikes’ are prior cases or appeals, brought while the plaintiff was a prisoner, which were dismissed ‘on the ground that [they were] frivolous, malicious, or fail[ed] to state a claim,” King, 398 F.3d at 1116 n.1 (first alteration in original), “even if the district court styles such dismissal as [a] denial of the prisoner’s application to file the action without prepayment of the full filing fee,” O’Neal v. Price, 531 F.3d 1146, 1153 (9th Cir. 2008). When courts “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.’” El- Shaddai v. Zamora, 833 F.3d 1036, 1042 (9th Cir. 2016) (quoting Blakely v. Wards, 738 F.3d 607, 615 (4th Cir. 2013)). I. Plaintiff’s Prior “Strikes” While defendants typically carry the initial burden of producing evidence to demonstrate that a prisoner is not entitled to proceed IFP, “[i]n some instances, the district court docket records may be sufficient to show that a prior dismissal satisfies at least one of the criteria under § 1915(g) and therefore counts as a strike.” King, 398 F.3d at 1120. That is the case here. Courts may “take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” Tiedemann v. von Blanckensee, 72 F.4th 1001, 1007 (9th Cir. 2023) (quoting Kipp v. Davis, 971 F.3d 939, 945 n.2 (9th Cir. 2020)). Based on a review of its own dockets and other court proceedings publicly available on PACER, the Court finds that Plaintiff, currently identified as California Department of Corrections and Rehabilitation (“CDCR”) Inmate #AU-5662, while incarcerated, has had six prior civil actions dismissed on the grounds that they were frivolous, malicious, or failed to state a claim upon which relief may be granted. They are: (1) Petillo v. Federal Bureau of Investigation, Civil Case No. 2:20-cv- 07900-JFW-MAA (C.D. Cal. Sept. 30, 2020) (Order Adopting Findings and Recommendation Denying Request to Proceed IFP on the grounds that Complaint is Frivolous) (ECF No. 10) (strike one); (2) Petillo v. CDCR, et al., Civil Case No. 2:20-cv-11004-JFW-MAA (C.D. Cal. Jan. 6, 2021) (Order Adopting Findings and Recommendation Denying Request to Proceed IFP on the grounds that Complaint Fails to State a Claim) (ECF No. 6) (strike two); (3) Petillo v. Zuniga, Civil Case No. 2:21-cv-00535-JFW-MAA (C.D. Cal. Jan. 21, 2021) (Order Adopting Findings and Recommendation Denying Request to Proceed IFP on the grounds that Complaint is Frivolous and Fails to State a Claim) (ECF No. 4) (strike three); (4) Petillo v. Los Angeles Police Dep’t, et al., Civil Case No. 2:20-cv- 11656-JFW-MAA (C.D. Cal. Jan. 27, 2021) (Order Adopting Findings and Recommendation Denying Request to Proceed IFP on the grounds that Complaint Fails to State a Claim) (ECF No. 6) (strike four); (5) Petillo v. Morales, Civil Case No. 2:21-cv-07180-JFW-MAA (C.D. Cal. Sept. 10, 2021) (Order Adopting Findings and Recommendation Denying Request to Proceed IFP on the grounds that Complaint is Frivolous and Fails to State a Claim) (ECF No. 4) (strike five); and (6) Petillo v. Monique, et al., Civil Case No. 2:21-cv-01996-KJM-CKD (E.D. Cal. Jan. 21, 2021) (Order Adopting Findings and Recommendation Dismissing Action for Failing to State a Claim1) (ECF No. 4) (strike six). Because Petillo has, while incarcerated, accumulated more than three “strikes” pursuant to § 1915(g), he cannot proceed IFP unless he meets the “imminent danger” exception to the three strikes provision of the PLRA. II. Imminent Danger of Serious Physical Injury To meet § 1915(g)’s exception, Plaintiff’s pleadings must contain a “plausible allegation that [he] faced ‘imminent danger of serious physical injury’ at the time of filing.” Cervantes, 493 F.3d at 1055. “Imminent danger” requires an allegation that a harm is “ready to take place,” or “hanging threateningly over one’s head,” id. at 1056 (citation omitted), and “cannot be triggered solely by complaints of past injury or generalized fears of possible future harm,” Hernandez v. Williams, No. 21cv347-MMA-KSC, 2021 WL 1317376, at *2 (S.D. Cal. Apr. 8, 2021) (citing Cervantes, 493 F.3d at 1053). / / /

1 See Harris v. Mangum, 863 F.3d 1133, 1143 (9th Cir. 2017) (“A prisoner may not avoid Plaintiff is currently incarcerated at SAC and his Complaint does not contain any coherent or plausible allegations to suggest he was in “imminent danger” at the time he filed it. Cervantes, 493 F.3d at 1055 (quoting 28 U.S.C. § 1915(g)). Instead, Plaintiff appears to claim RJD officials “manipulated[d] the system,” engaged in a racist and terrorist plot, and “conspire[ed] to have [him] murdered” sometime in 2020 before he was transferred to SAC. See Compl. at 3, 7‒8. These types of “overly speculative,” “fanciful,” “ridiculous,” and facially delusional assertions do not warrant an exception under § 1915(g). Cervantes, 493 F.3d at 1057 n.11; see also Holz v. McFadden, 2010 WL 3069745, at *3 (C.D. Cal. May 21, 2010) (“[M]erely alleging that the government is going to murder you is not enough to pass through the [imminent danger] gateway . . . .”); In re Gonzales, 2008 WL 666465, at *1‒2 (N.D. Cal. March 6, 2008) (finding prisoner’s allegations of genetic experimentation, food poisoning, radiation, governmental monitoring, and a “campaign to kill him” too implausible and delusional to meet § 1915(g)’s exception for imminent danger); Sierra v. Woodford, 2010 WL 1657493, at *2–3 (E.D. Cal. April 23, 2010) (finding “long, narrative, rambling statements regarding a cycle of violence, and vague references to motives to harm” insufficient to show plaintiff faced an “ongoing danger”). “The right to proceed [IFP] is not an unqualified one. It is a privilege, rather than a right.” Jefferson v. United States, 277 F.2d 723, 725 (9th Cir. 1960) (citation omitted). Section 1915(g) “does not prevent all prisoners from accessing the courts; it only precludes prisoners with a history of abusing the legal system from continuing to abuse it while enjoying IFP status.” Rodriguez, 169 F.3d at 1180. Because Petillo’s litigation history shows he is one of those prisoners, and he does not plausibly allege to have been in “imminent danger of serious physical injury” at the time he filed his Complaint, he is not entitled to proceed IFP in this action. See Cervantes, 493 F.3d at 1055. For the reasons above, the Court: (1) DENIES Plaintiff’s IFP Motions (ECF Nos. 2, 7) as barred by 28 U.S.C. § 1915(g); (2) DISMISSES this civil action without prejudice based on Plaintiff's failure to pay the full $405 statutory and administrative civil filing fee required by 28 U.S.C. § 1914(a); (3) CERTIFIES that an IFP appeal in this case would not be taken in good faith pursuant to 28 U.S.C. § 1915(a)(3); and (4) DIRECTS the Clerk of Court to enter a judgment of dismissal and to close the file. Dated: February 8, 2024 tt jen Janis L. Sammartino g United States District Judge