The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSAL OF ACTION WITH PREJUDICE FOR FAILURE TO STATE A CLAIM ECF No. 2 OBJECTIONS DUE WITHIN 14 DAYS
Plaintiff John Michael Crim ("Plaintiff") is a prisoner in the custody of the Federal Bureau of Prisons ("BOP"). Plaintiff is proceeding pro se and in forma pauperis in this civil action pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). On July 5, 2012, Plaintiff filed his Complaint. ECF No. 2.
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. Id. § 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." Id. § 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 3
"[t]hreadbare recitals of the elements of a cause of action, supported
by mere conclusory statements, 4 do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 5
U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual
matter, accepted as true, to 'state a 6 claim to relief that is
plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). While
factual 7 allegations are accepted as true, legal conclusions are not.
II. Summary of Complaint 9
Plaintiff was incarcerated at Taft Correctional Institution ("TCI") in Taft, California, where the events giving rise to this action occurred. Plaintiff names as Defendants: counselor Cynthia Mann, and inmate Grievance Coordinator Dale Patrick of the Management and Training Corporation.
Plaintiff alleges the following. On July 30, 2009, Plaintiff received a false incident report alleging insolence against Ms. T. Stewart, and was placed in the Special Housing Unit (SHU). On August 3, 2009, Plaintiff was brought before Defendant Mann, a member of the Unit Disciplinary Committee (UDC) team, for his required hearing. Plaintiff explained his innocence, naming three witnesses and one staff member representative in support of his claim for innocence. Plaintiff was presented with the incident report, and explained that the report misstates what Plaintiff actually said to that staff member.
Defendant Mann filled out an incident report, referring the incident to the Disciplinary Housing Officer (DHO), making recommendations of disciplinary segregation and loss of good conduct time. On August 5, 2009, Plaintiff was brought to meet two Special Investigative Services officers regarding Plaintiff's complaint against Ms. Stewart. The officers told Plaintiff that it was unlikely anything would be done regarding his complaint. Plaintiff was informed that if he chose to pursue it, Plaintiff would remain in the SHU for at least another 30 days, and that Plaintiff may be transferred if the situation is not resolved. Plaintiff was told that if he wanted to fight the disciplinary charge, it would be at least another thirty days before they would be able to round up the witnesses for the hearing. If Plaintiff chose to not fight the charge, the hearing could be held tomorrow. Plaintiff decided to not fight the charge, and not pursue his complaint against Ms. 2 Stewart in order to not be held in the SHU. 3
Disciplinary action was imposed on Plaintiff, including loss of job for six months, 4 commissary restriction for 3 months, loss of pay grade, loss of vacation, and placement into lower 5 housing. 6
On September 5, 2008, Plaintiff had entered into an agreement to make Inmate Financial Responsibility Program (IFRP) payments for restitution. On September 18, 2009, Plaintiff was 8 called into the office for failure to make his quarterly payment. Plaintiff explained that he had been 9 placed on the lowest pay grade and would not be able to make the $25 payment in September.
Plaintiff filed an inmate grievance on August 24 and August 26, 2009, to Defendant Patrick stating that the sanctions imposed by Defendant Mann and the DHO were affecting his ability to make his financial obligations under IFRP. Defendant Patrick did not provide a remedy for Plaintiff. Plaintiff was unable to pay for copying costs of legal documents, and postage to mail them.
Plaintiff contends a violation of due process under the Fifth Amendment, and a conspiracy to deprive Plaintiff equal protection pursuant to 42 U.S.C. § 1985.*fn1 Plaintiff requests as relief an injunction ordering Defendants from denying Plaintiff his rights and privileges, expunging the false record that Plaintiff refused to pay IFRP, returning Plaintiff to his prior position, and refrain ...