The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING DISMISSAL OF ACTION WITHOUT PREJUDICE TWENTY DAY OBJECTION DEADLINE
Plaintiff Keenan T. Holmes ("Plaintiff") is a federal prisoner proceeding pro se and in forma pauperis. He filed this civil action on October 30, 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. He names Bureau of Prison's ("BOP") Western Regional Director Robert McFadden, USP Atwater Warden Paul Coppenhaver, USP Atwater Hearing Officer D. Lorance and USP Atwater Case Manager C. Wolff-Would as Defendants.
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 is incarcerated at USP Lewisburg, in Lewisburg, Pennsylvania. The events at issue occurred while Plaintiff was housed at USP Atwater.
On April 4, 2012, at or about 8:30 a.m., Plaintiff was placed in the Special Housing Unit ("SHU") for possession of a weapon. At 6:20 p.m. that evening, Plaintiff received a copy of the incident report related to the alleged offense. Exh. C.
On April 5, 2012, at approximately 9:30 a.m., Plaintiff was escorted to a disciplinary hearing conducted by Discipline Hearing Officer ("DHO") Defendant Lorance. Defendant Lorance asked why Plaintiff was in the SHU, and Plaintiff responded, "I have a 104 shot." Defendant Lorance then asked Plaintiff if the weapon was his, and Plaintiff stated, "No comment." Defendant Lorance asked Plaintiff how he would plead, and Plaintiff stated that he had no plea. Defendant Lorance told Plaintiff that she could tell him what sanctions she would impose, explaining that if she found him guilty, he would receive a term in disciplinary segregation and a loss of privileges and good time credit. Plaintiff alleges that the April 5, 2012, hearing occurred less than 24 hours after he received notice of the alleged offense.*fn1 He contends that Defendant Lorance found him guilty, and imposed sanctions, at a procedurally improper hearing. He was also later approved for placement in the Special Management Unit ("SMU").
Plaintiff also states that Defendant Lorance took these actions in the absence of any facts, as the charging incident report had yet to be referred to Defendant Lorance by the Unit Discipline Committee ("UDC").*fn2 Plaintiff states that the incident report was not referred to the DHO until 1:36 p.m. on April 5, 2012, almost an hour after the conclusion of the DHO hearing.
At that time, Defendant Wolff-Would conducted Plaintiff's UDC hearing. When Defendant Wolff-Would came to Plaintiff's cell, Plaintiff told her that he had already seen the DHO, and Defendant Wolff-Would responded, "she (DHO) can't do that." Compl. 8. Defendant Wolff-Would decided to go ahead with the UDC hearing and asked Plaintiff if he had any witnesses or a staff representative. Plaintiff advised Defendant Wolff-Would that he had a staff representative that he wanted, but Defendant Wolff-Would, "Since you've already been seen by the DHO, I'm going to put down you have no witnesses or staff representative." Compl. 8. Plaintiff contends that a staff representative would have helped him gather information to prove his lack of knowledge as to what was placed in his pocket.
Plaintiff also states that he did not waive his right to a preliminary hearing by the UDC, as required by the BOP's Program Statement prior to any hearing by the DHO.*fn3 Plaintiff argues that the preliminary hearing would have allowed him to name and call witnesses and request a staff representative, to provide a statement in his defense, to be advised of his rights before the DHO and recommended sanctions, and to have the incident report ...