ORDER AND FINDINGS & RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983 and has filed an application to proceed in forma pauperis under 28 U.S.C. § 1915. This proceeding was referred to the undersigned magistrate judge in accordance with Local Rule 302 and 28 U.S.C. § 636(b)(1).
Plaintiff has submitted an in forma pauperis application, and on October 1, 2009, plaintiff provided a copy of his certified trust account statement and certificate which was completed by an authorized officer at Folsom State Prison. The application makes the showing required by 28 U.S.C. § 1915(a). Accordingly, plaintiff will be granted leave to proceed in forma pauperis.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. See 28 U.S.C. §§ 1914(a) & 1915(b)(1). An initial partial filing fee of $0.31 will be assessed by this order. See 28 U.S.C. § 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the initial partial filing fee from plaintiff's prison trust account and forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated to make monthly payments of twenty percent of the preceding month's income credited to plaintiff's prison trust account. These payments will be collected and forwarded by the appropriate agency to the Clerk of the Court each time the amount in plaintiff's account exceeds $10.00, until the filing fee is paid in full. See 28 U.S.C. § 1915(b)(2).
The court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or employee of a governmental entity. See 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. See 28 U.S.C. § 1915A(b)(1) & (2).
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure "requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, in order to survive dismissal for failure to state a claim 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, 550 U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the allegations of the complaint. See Hospital Bldg. Co. v. Rex Hosp. Trustees, 425 U.S. 738, 740 (1976). The court must also construe the pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff's favor. See Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).
II. Plaintiff's Amended Complaint
In his amended complaint, filed on November 13, 2009, plaintiff asserts that on May 11, 2008, following an administrative hearing, plaintiff was found guilty of a battery on an inmate with serious bodily injury. A recommendation was made that plaintiff serve a fifteen-month term in a security housing unit. Plaintiff contends that he is not alleging misconduct that would affect the duration of his confinement, but is instead challenging "the conditions of confinement that resulted from the actions of defendants named in this complaint." (Am. Compl. at 4.)
Plaintiff asserts five causes of actions. First, plaintiff claims violation of the Eighth and Fourteen Amendments for violation of his due process rights. In this regard, plaintiff contends that defendant Roman was involved in the investigation of the incident in question, reviewed staff reports of the battery and served as the hearing examiner at plaintiff's disciplinary hearing. Plaintiff attaches to his complaint exhibits which verify that defendant Roman was the senior hearing officer who found plaintiff guilty of the rules violation. (Id., Ex. Director's Level Appeal Decision, dated 11/24/08, at 1) (Doc. No. 9 at 18). Plaintiff was assessed 360-day credit forfeiture and was referred to classification for security housing unit assessment. (Id., Ex. Rules Violation Report, Log No. S08-05-005, at 3) (Doc. No. 9 at 24).
Second, plaintiff claims that in violation of his Eighth and Fourteenth Amendment due process rights, defendant Roman failed "to make any indicia of reliability of those statements contained in the record which Roman used to support his written finding." (Am. Compl. at 5.)
Plaintiff also claims that defendant Roman failed "to meet the preponderance of evidence evidentiary standard dictated in the states [sic] administrative statutes." (Id.) These failures, plaintiff contends, demonstrate deliberate indifference to plaintiff's civil rights.
Third, plaintiff claims that in violation of his right to due process under the Eighth and Fourteen Amendments, defendant Roman "failed to make an independent credibility assessment of the victim" which deprived plaintiff of a fair hearing. (Id. at 6.)
Fourth, plaintiff claims violation of his right to due process under the Eighth and Fourteen Amendments when defendant Doe, a correctional officer, used "coercion and intimidation to have Mallett waive his procedural due process right to an Investigative Employee, prior to the prison disciplinary hearing." (Id. at 7.) However, the exhibits attached to plaintiff's complaint indicate that an investigative employee was not assigned to him because the issues were not complex and ...