The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DISMISSING PLAINTIFF'S FIRST
AMENDED COMPLAINT WITH LEAVE TO
AMENDED COMPLAINT DUE WITHIN
THIRTY (30) DAYS
(ECF No. 20)
Plaintiff Terry Tyler, a federal prisoner proceeding pro se and in forma pauperis, filed this civil action on January 19, 2010, pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for the violation of civil rights by federal actors. (ECF No. 1.) On June 10, 2010, Plaintiff voluntarily filed an amended complaint. (ECF No. 20.) The Federal Rules of Civil Procedure provide that a party may amend his or her pleading "once as a matter of course at any time before a responsive pleading is served." Fed. R. Civ. P. 15(a). Plaintiff's First Amended Complaint is now before the Court for screening.
II. SCREENING REQUIREMENT
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, malicious," or 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).
III. SUMMARY OF FIRST AMENDED COMPLAINT
The First Amended Complaint identifies the following Bureau of Prisons ("BOP") employees at the United States Penitentiary, Atwater (Atwater) as Defendants in this action: (1) Coggins, Unit Counselor; (2) Rios, Warden; and (3) "[o]ther unknown name[d] officers/officials." (Compl. at 2.)
Plaintiff alleges the following:
In October of 2009 Plaintiff thwarted a prison gang's attempt to murder another inmate. Plaintiff was then placed in the Special Housing Unit (SHU) because of the threat of gang retaliation. (Id. at 3.) Plaintiff was either scheduled for a routine transfer or applied for a different facility.
Plaintiff sought a transfer to a "Re-entry Residential Center" (RRC). (Id. at 4.) The Defendants maintained that Plaintiff would be sent to an institution on par with Atwater and made no effort to reward Plaintiff's lifesaving efforts by facilitating his desired transfer. (Id.) The Defendants' actions were part of a "plan to deny [P]laintiff RCC in total violation of law  U.S.C. [§] 3621(b) which states 'The Bureau may at any time . . . direct the transfer of a prisoner from one penal or correctional facility to another.'" (Id. at 5.)
Defendant Rios was aware of Plaintiff's circumstances and was responsible for the violations because Rios "had the authority to order the remaining [D]efendants to facilitate Plaintiff transfer." (Id.) Part of Defendant Coggins' duties as Unit Counselor is to review Plaintiff's facility placement and determine if continued confinement in a particular facility is warranted. Plaintiff was never given such a review. Although, Plaintiff's status in the SHU was reviewed by the Defendants once a week for ten weeks.
The Defendants' refusal to transfer Plaintiff to a RRC amounted to cruel and unusual punishment in violation of the Eighth Amendment. The refusal was also "in violation of law 18 U.S.C. 3624(c) thereby violating Plaintiff right to Due Process under the law accordance with the Fifth Amendment . . . ." (Id. at 6.)
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. Facial plausibility demands more than ...