The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF ACTION FOR FAILURE TO STATE ANY CLAIMS THIRTY-DAY OBJECTION DEADLINE
Plaintiff Mark Savage ("Plaintiff"), a prisoner proceeding pro se and in forma pauperis in this civil rights action, filed his complaint on April 14, 2011. On September 19, 2011, the Court dismissed the complaint with leave to amend. Plaintiff filed his First Amended Complaint on November 9, 2011. He names Thomas Villagrana as the sole Defendant.
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, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While factual allegations are accepted as true, legal conclusions are not. Id.
According to Exhibit C, cited by Plaintiff, Defendant Villagrana completed a Work Supervisor's Report on December 1, 2009. In reviewing Plaintiff's work performance, Defendant Villagrana noted, "Inmate needs to limit his complaints to work-related justifiable situations, not personal problems." Exh. C, attached to Complaint. Plaintiff alleges that Defendant was aware of verbal complaints that Plaintiff made against him and that Defendant ultimately filed a false Rules Violation Report ("RVR") accusing Plaintiff of spitting into the peanut butter machine. Plaintiff states that his verbal complaints related to Defendant's lack of proper work supervision.
Plaintiff alleges that on January 19, 2010, he was placed into Administrative Segregation ("Ad-Seg") based on Defendant's false RVR. The RVR, dated January 17, 2010, states that Defendant Villagrana was Plaintiff's supervisor at the Prison Industry Authority. Defendant Villagrana alleges that he was reviewing surveillance video and saw Plaintiff "spit into the product inside the hopper." Exh. B, attached to Complaint. At the time of his Ad-Seg placement, he had not received the RVR and had not been found guilty of any rule violation.
Plaintiff was released from Ad-Seg on July 1, 2010, served with the RVR, afforded a hearing and found not guilty of the false charges on July 13, 2010. Plaintiff cites Exhibit B, where the hearing officer determines that after careful review of the video footage, "it is impossible to make the determination that he spit into the machine." Exh. B, attached to Complaint.
Plaintiff contends that his due process rights were violated because he did not receive an opportunity to be heard in a timely and meaningful manner, and he notes that prison officials waited over 5 months to view videotape evidence that they had in their possession. During his time in Ad-Seg, Plaintiff lost personal property and privileges that he would not have otherwise lost had prison officials timely reviewed the evidence.
Plaintiff also alleges that Defendant Villagrana retaliated against him in violation of the First Amendment.
The Due Process Clause protects prisoners from being deprived of liberty without due process of law. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). Under the Due Process Clause, a prisoner is entitled to certain procedural protections when he is charged with a disciplinary violation. Id., at 564-571. These protections include a written notice at least twenty-four hours before the disciplinary hearing, an opportunity to call witnesses and present documentary evidence, and a ...