The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM, AND THAT THIS DISMISSAL COUNT AS A STRIKE UNDER 28 U.S.C. § 1915(g) ) (Doc. 28.) OBJECTIONS, IF ANY, DUE IN THIRTY ) DAYS
Michael Lynn Waters ("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 October 8, 2010. (Doc. 1.) On August 29, 2011, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 12.) On September 29, 2011, Plaintiff filed the First Amended Complaint. (Doc. 15.) On December 8, 2011, the Court dismissed the First Amended Complaint for failure to state a claim, with leave to amend. (Doc. 18.) On April 9, 2012, Plaintiff filed the Second Amended Complaint. (Doc. 24.)
On April 16, 2012, Plaintiff lodged a proposed amended complaint, which was filed as the Third Amended Complaint on June 29, 2012. (Doc. 28.)
Plaintiff's Third Amended Complaint is now before the Court for screening.
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 Afrivolous 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). ANotwithstanding 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 Aa 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 A[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 (2007)). While a plaintiff=s allegations are taken as true, courts Aare 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 Asufficient factual matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal 556 U.S. at 678. 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, 556 U.S. at 678-79; 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 THIRD AMENDED COMPLAINT
Plaintiff is presently incarcerated at California State Prison-Sacramento, in Represa, California. The events at issue in the Third Amended Complaint occurred at Corcoran State Prison in Corcoran, California, when Plaintiff was incarcerated there. Plaintiff names only one defendant, Senior Psych R. Fischer ("Defendant").
Plaintiff alleges that defendant Fischer used erroneous documents against him as evidence to improperly double-cell him at CSP. Plaintiff was transferred from Pelican Bay State Prison (PBSP) to CSP on May 2, 2008. On May 21, 2008, the Classification Committee met to review Plaintiff's status. Before the meeting, defendant Fischer reviewed documents with Plaintiff and interviewed Plaintiff. Plaintiff contends that the documents reviewed by Fischer were from PBSP and mistakenly classified Plaintiff as a program failure for refusing to double-cell with another inmate. Plaintiff alleges that PBSP officials cleared up the mistake, and Plaintiff's records show that he was granted single-cell status because he suffers from Obsessive Compulsive Disorder (OCD), a mental health issue. Plaintiff asserts that he never signed a double-cell compatibility form at any time.
Plaintiff requests monetary damages ...