The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
FINDINGS AND RECOMMENDATION TO DISMISS COMPLAINT WITH PREJUDICE (Doc. 1)
MICHAEL JONES ("Plaintiff") is proceeding pro se and in forma pauperis. At the time of filing his original complaint, in August of 2005, Plaintiff was a federal prisoner in custody at the United States Penitentiary Atwater, ("U.S.P. Atwater") in Atwater, California -- where the acts he complains of occurred. Plaintiff has since been transferred to the United States Penitentiary Tucson, in Tucson, Arizona.
The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim upon which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).
A complaint, or portion thereof, should only be dismissed for failure to state a claim upon which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in support of the claim or claims that would entitle him to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Palmer v. Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under this standard, the Court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all doubts in the plaintiff's favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
C. Summary of Plaintiff's First Amended Complaint
Plaintiff alleges that his rights under the Eighth Amendment were violated when he was falsely accused of being absent, without excuse, during the census count, which resulted in a reduction in his pay grade. Plaintiff names four defendants: A. Woife, Unit Counselor; M.E. Orosco, Unit Manager; Cathryn Gant, Acting Warden; and J.E. Gunja, Regional Director. Plaintiff sues all defendants in their official capacities.
Plaintiff alleges that: on August 5, 2004, one of the defendants wrote an incident report wherein Plaintiff was accused of un-excused absence during the census count; that on September 22, 2004, the three other defendants wrote similar incident reports; and that, as a result, Plaintiff's pay grade was reduced from a grade 2 to a grade 4.
Plaintiff seeks monetary damages.
The Fourth Amendment to the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and ...