The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE BE DISMISSED, WITH PREJUDICE, FOR FAIILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED (Doc. 12.) OBJECTIONS, IF ANY, DUE IN THIRTY DAYS
Adall Allen ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C. § 1983. On November 7, 2011, Plaintiff filed the Complaint commencing this action. (Doc. 1.) On September 13, 2012, the Court dismissed the Complaint for failure to state a claim, with leave to amend. (Doc. 10.) On October 15, 2012, Plaintiff filed the First Amended Complaint, which is now before the Court for screening. (Doc. 12.)
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. Id. 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 FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated in the custody of the California Department of Corrections and Rehabilitation (CDCR) at Folsom State Prison in Represa, California. The events at issue in the First Amended Complaint occurred at Avenal State Prison (ASP), Avenal, California, when Plaintiff was incarcerated there. Plaintiff names only one defendant, Lieutenant R. Reifschneider ("Defendant"). Plaintiff factual allegations follow.
On March 1, 2011, at ASP, Plaintiff was searched by Defendant. During the search, a substance was found which was alleged to be heroin by Defendant. No field tests were ever conducted on the substance. Plaintiff was accused of having heroin for sale and distribution. Plaintiff asked Defendant why he couldn't conduct a field test, and Defendant said he was not qualified to perform the test, and the test would be performed the next day. Plaintiff contends that Defendant was qualified to perform the test.
Plaintiff was placed in administrative segregation (Ad-Seg) pursuant to Defendant's order, in violation of Plaintiff's rights to due process. Defendant failed to submit his lock-up order to the Captain within twenty-four hours, and to hold a hearing within ninety-six hours, in violation of CDCR regulations. Plaintiff suffered cruel and unusual punishment by being arbitrarily placed in Ad-Seg. This action resulted in Plaintiff losing his job, his pay number, and his privileges.
Plaintiff requests as relief compensatory and punitive damages, and payment of court costs and fees.
The Civil Rights Act under which this action was ...