The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING CERTAIN CLAIMS, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM (ECF No. 34) OBJECTIONS DUE WITHIN THIRTY DAYS
Plaintiff Hilton Fisher ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action was filed on April 15, 2011. On March 14, 2012, Plaintiff's first amended complaint was dismissed with leave to file an amended complaint within thirty days. (ECF No. 29.) Currently pending is the second amended complaint, filed April 27, 2012. (ECF No. 34.)
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 "fails to state a claim on which relief may be granted," or that "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).
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, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, but the pleading standard is now higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive screening, Plaintiff's claims must be facially plausible, which requires sufficient factual detail to allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged, Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The "sheer possibility that a has defendant acted unlawfully" is not sufficient, and "facts that are 'merely consistent with' a defendant's liability" falls short of satisfying the plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969.
Further, under section 1983, Plaintiff must demonstrate that each defendant personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Although a court must accept as true all factual allegations contained in a complaint, a court need not accept a plaintiff's legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (quoting Twombly, 550 U.S. at 555, 127 S. Ct. 1955).
II. Second Amended Complaint Allegations
Plaintiff brings this action against Defendant S. Adair alleging violations of the Eighth Amendment, and of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. (Second Am. Compl. 2, 37,*fn1 ECF No. 34.) On January 29, 2010, Defendant Adair conducted a mental health intake interview with Plaintiff. Defendant Adair documented that Plaintiff had been placed in a mental health crisis bed from December 14 through December 30, 2009. Defendant Adair documented that during the interview, Plaintiff stated that his cellmate was safe because he had no thoughts or feelings about harming his cellmate. (Id. at 4.) Plaintiff alleges that Defendant Adair falsified a report stating that Plaintiff made a statement during the interview that he wanted single cell status because Plaintiff felt he might rape his cellmate. (Id. at 4-5, 7.)
During an Inmate Classification Committee ("ICC") hearing on February 3, 2010, Defendant Adair disclosed Plaintiff's confidential mental health treatment plan to custody staff. (Id. at 4.) Plaintiff alleges that on February 9, 2010, Defendant Adair falsified a rule violation report by reporting that during the intake interview Plaintiff stated,"I want single cell status, I feel I may rape someone." (Id. at 5, 7.) Defendant Adair also wrote that "I asked him if his [sic] was safe or in any danger, inmate Fisher replied, "Oh no I'm not going to hurt my cellie, he's safe." (Id. at 5.) After speaking with Plaintiff during the hearing, the ICC directed Defendant Adair to write the rule violation report. (Id. at 6.)
On March 9, 2010, Defendant Adair appeared by phone at the rule violation hearing. Defendant Adair was asked why he waited until February 3, 2010, to take action regarding the threatening statement made by Plaintiff on January 29, 2010. Defendant Adair responded that there was no threat made against Plaintiff's cellmate, and there was no concern regarding the safety of Plaintiff's cellmate. (Id. at 5.) When the subject of Plaintiff's cell status was brought up at the February 3, 2010 ICC meeting, Defendant Adair relayed the comment made by Plaintiff and his opinion regarding the manipulative nature of the comments. (Id. at 5-6.) Plaintiff was found guilty of violating Director Rule 305(d)(1), threatening an inmate. (Id. at 6.)
Plaintiff alleges that based upon these falsified reports he was
placed in administrative segregation from January 29, 2010, until
January 19, 2011. Plaintiff states that he is a convicted sex offender
and due to the falsified reports his life was in danger.*fn2
(Id. at 8.)
For the reasons set forth below, Plaintiff has failed to state a cognizable claim for relief. Plaintiff has previously been provided with the legal standards that apply to his Eighth Amendment and due process claims and has failed to correct the deficiencies. The Court recommends that these claims be dismissed, with prejudice, for failure to state a claim, and that Plaintiff be given ...