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Marlo K. Brown v. Swarts

February 26, 2012

MARLO K. BROWN,
PLAINTIFF,
v.
SWARTS, ET AL. DEFENDANTS.



The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge

ORDER DISMISSING PLAINTIFF'S COMPLAINT WITH LEAVE TO AMEND

(ECF No. 1)

THIRTY-DAY DEADLINE

Plaintiff Marlo K. Brown ("Plaintiff") is a prisoner proceeding pro se in a civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff has consented to the Magistrate Judge handling all matters in this action. (ECF No. 3.)

Plaintiff initiated this action on June 15, 2011. Plaintiff's original Complaint is now before the Court for screening. (ECF No. 1.)

I. SCREENING REQUIREMENTS

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 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, ___ U.S. ___, ___, 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.'" Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 1949-50.

II. SUMMARY OF COMPLAINT

It appears Plaintiff currently is housed at a prison facility in Baltimore, Maryland. (ECF No. 7.) He previously was housed at the United States Penitentiary in Atwater, California ("USP Atwater"), where all of the incidents alleged in his Complaint occurred.

Plaintiff brings this action for violations of his rights under the First Amendment, Fourth Amendment, the Eighth Amendment, and the Due Process Clauses of the Fifth and Fourteenth Amendments. He names the following individuals as Defendants: 1) Assistant Warden Swarts, Assistant Warden of Operations at USP Atwater, 2) Captain Keilman, 3) J. Devore, DHO, 4) SMU Hearing Case Manager Scott, 5) Lieutenant Gonzales, DHO for Incident Report, and 6) Mrs. Lorants, DHO of USP Atwater.

Plaintiff asks that the Court to cancel his referral to the Special Management Unit ("SMU "), order his transfer him to another institution, order that he be released to the general prison population,*fn1 and order that all incident reports be dismissed due to a violation of his right to the due process of the law and his right to a fair and impartial hearing.

Plaintiff alleges as follows:

Plaintiff alleges that the Bureau of Prison's Discipline Hearing Officer ("DHO") violated his rights under the First Amendment by failing to let Plaintiff "redress and grievance" at his June 2, 2011, SMU hearing.*fn2 Plaintiff's Fourth Amendment right to be secure in his person was violated when he was sent to SMU. Plaintiff's Due Process rights under the Fifth and Fourteenth Amendments were violated because his background history was falsified for the SMU referral. Plaintiff fears he will suffer additional harm ...


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