The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS ACTION PROCEED ONLY WITH PLAINTIFF'S CLAIM FOR RETALIATION AGAINST DEFENDANT McBRIDE, AND THAT ALL OTHER CLAIMS AND DEFENDANTS BE DISMISSED FROM THIS ACTION OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
John Michael Crim ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Plaintiff filed the Complaint commencing this action on November 20, 2009. (Doc. 1.) On September 22, 2010, Plaintiff filed the First Amended Complaint. (Doc. 28.) On January 26, 2011, the Court dismissed the First Amended Complaint under Local Rule 220, with leave to amend. (Doc. 34.) On February 3, 2011, Plaintiff filed the Second Amended Complaint. (Doc. 35.) The Court screened the Second Amended Complaint pursuant to 28 U.S.C. § 1915A and issued an order on May 25, 2012, requiring Plaintiff to either file a Third Amended Complaint or notify the Court of his willingness to proceed with the claims found cognizable by the Court. (Doc. 59.) The Third Amended Complaint was filed on July 5, 2012. (Doc. 73.)
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
The events in the Third Amended Complaint allegedly occurred at the Taft Correctional Institution (TCI) in Taft, California, where Plaintiff is presently incarcerated. Plaintiff names as defendants Management & Training Corp., Neil H. Adler (Warden), Tiarra Stewart, Curtis Logan, Mann (Unit Disciplinary Committee member), McBride (Special Investigative Supervisor) and Does 1-50. Plaintiff's factual allegations follow.
On or about July 30, 2009, Plaintiff, a Caucasion inmate, was serving food at his work assignment where he had worked for ten months. At one point, defendant Stewart, an African-American staff member on duty, put her hands on her hips and yelled at Plaintiff, AHow long you been line-backer?@ Plaintiff responded without thinking, ALong enough to know how to do the job.@ Then Stewart said, AThat=s enough, take off your gloves and get off my line.@ Plaintiff, intimidated and embarrassed, was escorted to the Special Housing Unit (SHU) for discipline, and an incident report was filed against him. Plaintiff was detained in the SHU for seven days.
On or about August 3, 2009, Plaintiff was brought before defendant Mann for a UDC hearing.*fn1 Plaintiff explained he was innocent of the charge of insolence to a staff member. Plaintiff had named three witnesses and one staff member representative in support of his claim of innocence. Plaintiff was given a copy of the Incident Report in which defendant Stewart alleged that Plaintiff said, "Don't tell me how to do my job." Plaintiff explained to defendant Mann that this is not what he said. Mann recommended loss of good time credit and disciplinary segregation, but the Disciplinary Housing Officer (DHO) ultimately determined this type of sanction was unwarranted in Plaintiff's case.
Plaintiff submitted a written complaint to Special Investigative Supervisors McBride and Sy, against defendant Stewart for discrimination. On or about August 5, 2009, Plaintiff was brought before McBride and Sy. McBride interviewed Plaintiff and informed him that no disciplinary measures would be taken against defendant Stewart, encouraging Plaintiff to drop the complaint or he would be detained another thirty days in the SHU pending the next hearing. McBride also stated that if Plaintiff continued with the complaint, he would be transferred to another prison. McBride told Plaintiff that if he dropped the complaint, the DHO hearing would be conducted the next day and Plaintiff would be released from the SHU. Under duress, Plaintiff decided to discontinue his complaint.
On or about August 6, 2009, Plaintiff was called into the DHO's office and found guilty of insolence. Plaintiff was released from the SHU and taken back to the Camp facility. DHO Logan imposed sanctions on Plaintiff: loss of job for six months and commissary restriction for three months. UDC member Mann imposed additional sanctions without a hearing: loss of pay grade, loss of vacation, and placement into lower housing.
On or about August 8, 2009, Plaintiff observed defendant Stewart, who is African-American, outside of the dining hall, reprimanding an African-American inmate, stating AIf you do that one more time, I will throw you in the hole.@ This was one of many occasions when Plaintiff observed Stewart treating African-American inmates with deference, or greeting them as if it was a high school reunion. Stewart would never look directly at Plaintiff or call him by name, referring to Plaintiff as simply "you" or "he," or simply issuing a grunt.
Plaintiff participated in the Inmate Financial Responsibility Program (AIFRP@) at TCI, through which he made payments to meet his financial obligations. On or about September 18, 2009, Plaintiff was called into defendant Mann's office. Mann informed Plaintiff that he failed to meet his IFRP requirement by not having enough funds in his inmate account. Plaintiff explained his circumstances, and Plaintiff was given more sanctions: restriction of commissary purchases to $25.00 per month, lowest pay grade of $5.25 per month, and extended lower housing until December 1, 2009, at which time Plaintiff's ability to pay would be reevaluated. Plaintiff told Mann that he will have earned only $15.75 by that date and would not be able to make the payment.
During the time that Plaintiff was in the SHU, Mann was heard by other inmates to say, "I'm glad to have him out of my hair." This was reported to Plaintiff by more than one inmate.
On or about August 8, 2009, Plaintiff received a new job assignment, which was known as a "punishment job," and was paid at the lowest pay grade of $5.25 per month. He was paid for 4 hours per day, 5 days per week. Because of the new job, Plaintiff was required to attend his evening meal in the dining hall around 1630 hours.
On or about August 16, 2009, Plaintiff was instructed by the kitchen clerk to come and sign his last time sheet. He did as instructed and was confronted by defendant Stewart, in a haughty posture, who said, "What is he doing here?" The clerk simply told Stewart that Plaintiff was there to sign his time sheet. On or about August 21, 2009, while in line at the dining hall, Plaintiff presented his food tray to the line servers. Defendant Stewart only placed a few strands of spaghetti on Plaintiff's tray. Plaintiff remained there until defendant Stewart decided to place the remaining portion on his tray. On or about August 22, 2009, Plaintiff walked into the dining hall as usual and heard defendant Stewart say, "I'm going to put somebody in the hole." Stewart asked Plaintiff, "Where do you work?" and ...