The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, ECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UNDER SECTION 1983, AND THAT THIS DISMISSAL BE SUBJECT TO 28 U.S.C. § 1915(g) (Doc. 19.) OBJECTIONS, IN ANY, DUE IN THIRTY DAYS
I. RELEVANT PROCEDURAL HISTORY
Stephen C. Reed ("Plaintiff") is a state prisoner, proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this action on January 14, 2010. (Doc. 1.)
Plaintiff's original Complaint contained a claim for violation of his rights to due process, based on a prison disciplinary conviction for which he was assessed a loss of three hundred sixty days of credit. Id. The Court screened the original Complaint pursuant to 28 U.S.C. § 1915 and entered an Order to Show Cause on March 23, 2011, directing Plaintiff to show cause why this action should not be dismissed pursuant to Heck v. Humphrey, 512 U.S. 477 (1994), on the ground that Plaintiff had not alleged any facts indicating that his disciplinary conviction had been reversed, expunged or otherwise invalidated. (Doc. 9.) On November 7, 2011, Plaintiff filed a response to the Order to Show Cause and a motion for leave to file an amended complaint. (Doc. 12.) Plaintiff also lodged a proposed first amended complaint. (Doc. 13.) The Court found that Plaintiff alleged facts indicating that his disciplinary conviction has been invalidated on due process grounds. Accordingly, the Order to Show Cause was discharged, and Plaintiff's motion for leave to amend was granted. (Doc. 14.) On November 9, 2011, the First Amended Complaint was filed. (Doc. 15.)
The Court screened the First Amended Complaint and issued an order on December 12, 2011, dismissing the complaint for failure to state a claim, with leave to amend. (Doc. 18.) On December 28, 2011, Plaintiff filed the Second Amended Complaint, which is now before the Court for screening. (Doc. 19.)
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 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 is required to 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, 127 S.Ct. 1955 (2007)). While a plaintiff's allegations are taken as true, courts "are not required to indulge unwarranted inferences," Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 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. While factual allegations are accepted as true, legal conclusions are not. Id.
To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to state a plausible claim for relief. Iqbal, 129 S.Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility standard. Id.
III. SUMMARY OF SECOND AMENDED COMPLAINT
Plaintiff is presently incarcerated at Corcoran State Prison in Corcoran, California, where the events at issue allegedly occurred. Plaintiff names as defendants Correctional Officer ("C/O") C. James, Sergeant T. Gonzales III, Lieutenant F. Munoz, Captain M. Jennings, Lieutenant J. Kavanaugh, Correctional Counselor II D. DeAcevedo, Captain M. T. Cisneros, and Associate Warden K. Comaites.
Plaintiff alleges as follows. On August 24, 2008, C/O James falsified a Rules Violation Report ("RVR") against Plaintiff for possession of a modified ink pen fashioned into a prison-made deadly weapon. C/O James stated that she had been trained a few days before by Sgt. Gonzales regarding inmates using these ink pens as stabbing instruments. Sgt. Gonzales, the reviewing sergeant, signed the falsified RVR, allowing Plaintiff to be accused of possession of a modified deadly weapon. In a supplemental Crime/Incident Report, Lt. Munoz falsely reported that Sgt. Gonzales had received confidential information two days prior that Black inmates were altering and using ink pens as weapons. Sgt. Gonzales denied receiving this confidential information. Lt. Munoz used this fabricated, racially-motivated statement to place Plaintiff in administrative segregation ("Ad-Seg") while conspiring to justify the false charges and evidence. Lt. Munoz then sent this matter to the District Attorney for prosecution, where the case was declined.
On August 27, 2008, Plaintiff appeared before Captain Jennings for a Captain's Review. Although required to do so, Captain Jennings failed to examine the alleged weapon to determine whether sufficient cause existed to continue Plaintiff's placement in Ad-Seg. Captain Jennings had the authority to release Plaintiff from Ad-Seg, but he relied on the reporting employee's (C/O James) RVR.
On January 24, 2009, Plaintiff attended a hearing on the RVR conducted by Lt. Kavanaugh. Plaintiff was found guilty of possession of a deadly weapon, based on the misleading information on the RVR and failure to examine the evidence. Plaintiff was penalized by loss of three hundred sixty days credit and referral to the Inmate Classification Committee ("ICC") for assessment of a ten-month Security Housing Unit ("SHU") placement. On March 4, 2009, Plaintiff appeared before the ICC consisting of several defendants including CCII DeAzevedo, Capt. Cisneros, and Associate Warden K. Komaites. Plaintiff vehemently objected to the SHU placement, imploring the ICC to please look at the ink pen to see that it was not a weapon, and to realize that Plaintiff's due process rights were being violated. ...