ORDER DISMISSING CASE, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED UNDER § 1983 (Doc. 17.) ORDER THAT THIS DISMISSAL IS SUBJECT TO THE "THREE STRIKES" PROVISION OF 28 U.S.C. § 1915(g)
GARY S. AUSTIN, Magistrate Judge.
Lawrence Elliott Cottle ("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 June 14, 2012. (Doc. 1.)
On June 29, 2012, Plaintiff consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c), and no other parties have made an appearance. (Doc. 6.) Therefore, pursuant to Appendix A(k)(4) of the Local Rules of the Eastern District of California, the undersigned shall conduct any and all proceedings in the case until such time as reassignment to a District Judge is required. Local Rule Appendix A(k)(3).
The court screened the Complaint pursuant to 28 U.S.C. § 1915A and entered an order on February 20, 2013, dismissing the Complaint for failure to state a claim, with leave to amend. (Doc. 9.) On May 15, 2013, Plaintiff filed the First Amended Complaint, which is now before the court for screening. (Doc. 17.)
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 "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 is required to 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 , 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 "are 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 "sufficient 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 . The mere possibility of misconduct falls short of meeting this plausibility standard. Id . at 678-79; Moss v. U.S. Secret Service , 572 F.3d 962, 969 (9th Cir. 2009).
III. SUMMARY OF FIRST AMENDED COMPLAINT
Plaintiff is presently incarcerated at the California Substance Abuse Treatment Facility in Corcoran, California. The events at issue in the First Amended Complaint allegedly occurred at the California Correctional Institution in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as defendants Lieutenant D. Randall, Sergeant (Sgt.) G. Doser, T. W. Steadman (Associate Warden), K. Holland (Chief Deputy Warden), Captain R. Davis (Appeals Examiner), and D. Foston (Chief, Inmate Appeals Branch). Plaintiff's factual allegations follow.
On June 17, 2010, during recreational yard recall, a group disturbance ensued involving several inmates fighting. When the fighting erupted, Plaintiff was stationery in the area assigned by officers as a staging area for Plaintiff's building during yard recall. When Plaintiff heard "Get down, " he immediately got down in the concrete area directly in front of him, to avoid being mistaken as a combatant or being shot. (First Amd Cmp, Doc. 17 at 4-5.)
Following the disturbance, all African-American inmates who were "down" in selected areas of the recreational yard were placed in restraints and escorted off the yard to be strip-searched and medically evaluated, to determine whether they were involved in the disturbance. Plaintiff was medically evaluated and cleared, with no injuries, redness, or swelling anywhere on his body.
All African-American inmates who were escorted off the yard were subsequently placed in administrative segregation (Ad-Seg), pending investigation. Plaintiff was unjustly placed in Ad-Seg from June 17, 2010 until November 30, 2010.
On July 8, 2010, Plaintiff was issued a Rules Violation Report for participation in a riot, with Sgt. G. Doser named as the employee who reported that Plaintiff was observed striking other inmates in the head and upper torso, based on a review of a yard video recording of the riot. On July 9, 2010, Plaintiff was allowed to personally review the video. Despite Sgt. Doser's statement, Plaintiff is not in the video.
When Officer J. Duran (not a named defendant) introduced himself as an Investigative Employee, Plaintiff requested that the video recording and Sgt. Doser be present at the disciplinary hearing. On July 13, 2010, Officer Duran questioned Sgt. Doser to identify who Plaintiff was observed fighting with during the disturbance, and Sgt. Doser responded, "I would have to review the tape." (First Amd Cmp at 6:13.) Sgt. Doser never returned with an answer.
On July 30, 2010, a disciplinary hearing was conducted by Lt. D. Randall. The core evidence relied on was the yard recording, allegedly implicating Plaintiff in the disturbance, and the alleged observation by Sgt. Doser. In light of this fact, Plaintiff requested that Sgt. Doser be present at the disciplinary hearing, along with the yard video recording. Sgt. Doser was present. However, Lt. Randall refused to allow the video for Plaintiff's defense. When Lt. Randall wrote his report, finding Plaintiff guilty, he purposely left out Plaintiff's request for the video to be present at the hearing. Plaintiff was found guilty of participation in a riot and was placed in Ad-Seg. Chief Disciplinary Officer T. W. Steadman approved this disposition, fully aware that Plaintiff was denied the core part of his defense.
On August 29, 2010, Plaintiff submitted an inmate grievance regarding the alleged due process violations. On October 13, 2010 and October 14, 2010, defendants Steadman and Holland denied Plaintiff's appeal and upheld the finding of guilt, even though they acknowledged Plaintiff was not in the video recording of the riot. Defendants Steadman, Holland, and Appeals Examiner R. Davis rubberstamped the findings, acting negligently and recklessly in disregard of the evidence. Defendants Steadman and Holland incompetently failed to follow Title 15 of the California Code of Regulations. As a result of the actions of defendants Steadman, Holland, Davis, and Foston, Plaintiff suffered anxiety, emotional distress, and retaliation.
Defendants Foston, Steadman, Holland, Randall, Doser, and Davis acted with deliberate difference towards Plaintiff's due process rights guaranteed under law, and Plaintiff's contract rights under Title 15. Plaintiff suffered violation of his constitutional rights under the Fourth, Fifth, Eighth, and Fourteenth ...