The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF CERTAIN CLAIMS TWENTY-DAY OBJECTION DEADLINE
Plaintiff Long Way ("Plaintiff"), a federal prisoner proceeding pro se, filed this civil action on March 9, 2012, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by federal actors. Plaintiff paid the filing fee and is therefore not proceeding in forma pauperis.
On March 22, 2013, Plaintiff filed a First Amended Complaint ("FAC") pursuant to the Court's prior screening order. As he did in his original complaint, Plaintiff again named "20 Unknown Name Employees of Federal Bureau of Prisons-Atwater."*fn1
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, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth "sufficient factual matter, accepted as true, to 'state a claim that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal conclusions are not. Id.
Bivens actions and actions under 42 U.S.C. § 1983 "are identical save for the replacement of a state actor under § 1983 by a federal actor under Bivens." Van Strum v. Lawn, 940 F.2d 406, 409 (9th Cir.1991). Under Bivens, a plaintiff may sue a federal officer in his or her individual capacity for damages for violating the plaintiff's constitutional rights. See Bivens, 403 U.S. at 397. To state a claim a plaintiff must allege: (1) that a right secured by the Constitution of the United States was violated, and (2) that the alleged violation was committed by a federal actor.
Plaintiff must also demonstrate that each defendantpersonally participated in the deprivation of his rights. Id. at 1949. This requires the presentation of factual allegations sufficient 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. Iqbal, 129 S.Ct. at 1949-50; Moss, 572 F.3d at 969.
B. SUMMARY OF PLAINTIFF'S ALLEGATIONS
Plaintiff names 20 Unknown Employees of Federal Bureau of Prisons- Atwater as Defendants in this action. He further identifies them as approximately 20 members of the shakedown crew on or about April 7, 2010.
Plaintiff alleges that during the April 2010 lockdown at Atwater, a mass shakedown was conducted in Unit 5A on or about April 7, 2010. Pursuant to the instructions of the shakedown crew, Plaintiff packed all of his personal property and government issued property into 10 full bags, with his name and cell number visible on each bag. The 10 bags included: 1 bag of government issued property, 3 bags of personal/commissary items and 6 bags of legal property. Plaintiff observed the shakedown crew remove 10 bags of property from his cell to be x-rayed. From there, his property was moved again to be manually searched.
After Plaintiff's cell was searched and checked off on the shakedown log, Plaintiff was brought back to his cell. The crew returned 1 bag of government issued items, 1 bag of personal items and 3 bags of legal property. The returned bags were noted on the log sheet. Plaintiff asked about the remaining 5 bags (2 bags of personal property and 3 bags of legal property) and was told that they would be returned when the crew had finished their assigned tasks. Plaintiff's 5 bags were not returned and he never received a confiscation form to document confiscation of the property.
Plaintiff alleges that none of his bags contained contraband. He also explains that from 2002 to 2009, he worked in the laundry department, where he witnessed shakedown crews push carts of inmates' personal property and contraband to the trash compactor.
Plaintiff inquired about his 5 bags of property, and Counselor Coggin was able to locate and return 2 bags of personal property. Plaintiff believes that his 3 bags of legal property were either intentionally or negligently lost or destroyed by the shakedown crew. He explains that there were approximately 20,000 pages or more of legal documents related to his cases challenging his conviction.*fn2 His section 2255 petition had been pending in the United States District Court for the Eastern District of California since ...