The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER & FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is defendants' motion to dismiss, filed on October 22, 2008, for failure to exhaust administrative remedies and for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff filed an opposition on November 13, 2008, to which defendants filed a reply.
Plaintiff alleges many instances where defendants violated his due process rights at several prison disciplinary hearings, most stemming from an excessive force incident on August 28, 2005. Plaintiff first contends that in July 2005, Lt. Shankland violated his due process rights at a hearing to adjudicate a rules violation report.
On August 28, 2005, Correctional Officer (c/o) Zepeda used excessive force against plaintiff during an altercation that led to plaintiff being placed in Administrative Segregation (Ad Seg). Following this incident Captain Martinez, c/o Zepeda, c/o Robinson and Lt. Shankland falsified documents and fabricated charges against plaintiff.
On September 13, 2005, c/o Hadenfelt refused to recuse herself as plaintiff's investigative employee who was responsible for looking into the August 28, 2005 incident. Correctional Officer Hadenfelt falsified a report stating that plaintiff had no defense and accepted her as his investigative employee.
On October 18, 2005, Lt. Shankland improperly presided over a disciplinary hearing using false allegations and falsified documents concerning the August 28, 2005, incident, that Captain Martinez approved.
On December 2, 2005,*fn1 Deputy Warden O'Ran, Associate Warden Cullen, Correctional Counselor Anderson and Captain Martinez violated plaintiff's due process rights in an ICC hearing by extending plaintiff's term in Ad Seg without finding him guilty and refusing to allow plaintiff to enter any statements or evidence in his defense.
On January 13, 2006, Lt. Shankland confiscated plaintiff's legal materials, that caused plaintiff to default on an appeal to the Supreme Court.
In January 2006, Lt. Twyman violated plaintiff's due process rights by finding him guilty at a disciplinary hearing without allowing plaintiff to call witnesses or present evidence.
After a grievance appeal, plaintiff was given a re-hearing concerning the excessive force incident and on February 18, 2006, Lt. Hollinger found plaintiff guilty during a disciplinary re-hearing but did not allow plaintiff to present evidence.
On May 13, 2006, Lt. Hall found plaintiff guilty during another disciplinary re-hearing of the August 28, 2005, incident, without allowing plaintiff to present evidence.
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, No. 07-1015, 2009 WL 1361536 at * 12 (May 18, 2009) (quoting Twombly, 550 U.S. ...