United States District Court, C.D. California
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE
HONORABLE KENLY KIYA KATO United States Magistrate Judge.
April 7, 2017, Plaintiff Anthony Moneyham
(“Plaintiff”), proceeding pro se and
in forma pauperis, constructively filed a First
Amended Complaint (“FAC”) pursuant to Bivens
v. Six Unknown Named Agents of the Fed. Bureau of
Narcotics (“Bivens”), 403 U.S. 388,
91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). ECF Docket No.
(“Dkt.”) 7, FAC. Plaintiff sues defendants Case
Manager A. Warren, Hearing Administrator Dwight Miller,
Acting Administrator National Inmate Appeals Roger, Warden
Richard B. Ives, and Discipline Hearing Officer D. Elliot
(collectively “Defendants”), each in their
individual capacity, for violation of his First and Fifth
Amendment rights. Id.
reasons set forth below, the FAC is dismissed with leave to
March 8, 2017, Plaintiff constructively filed a Complaint
pursuant to Bivens against Defendants, each in their
individual capacity. Dkt. 1, Compl. The claims in the
Complaint are substantially similar to those alleged in the
FAC. Compare id. and Dkt. 7, FAC.
April 7, 2017, prior to the Court's screening of the
Complaint, Plaintiff constructively filed the FAC against
Defendants, each in their individual capacity. Dkt. 7, FAC.
Plaintiff alleges Defendants retaliated against him in
violation of the First Amendment by placing him in the
Special Management Unit (“SMU”) program because
he filed a grievance against a staff member and requested a
criminal investigation. Id. Plaintiff also alleges
his SMU placement violated his due process rights under the
Fifth Amendment because (a) he was denied staff
representation at the hearing; (b) he was denied copies of
the Disciplinary Hearing Officer (“DHO”) reports
that were the grounds for his SMU placement; and (c) he was
transferred to SMU in violation of a prison policy requiring
completion of disciplinary segregation time and resolution of
incident reports before transfer. Id.
Plaintiff's allegations regarding each defendant,
Plaintiff alleges defendant Warren prepared the SMU packet
based in part on Plaintiff's DHO report and ignored
Plaintiff's request for a staff representative.
Id. Defendant Miller conducted the SMU placement
hearing where Plaintiff requested a continuance so he
“could ___evidence why [he] should not be designated to
the SMU program.” Id. (blank in original).
Defendant Miller denied the requested continuance and
defendant Ives “fail[ed] to intervene.”
Id. Defendant Elliot withheld disciplinary hearing
reports so Plaintiff could not appeal the SMU placement.
Id. Plaintiff alleges he was transferred to the SMU
program despite having written an incident report,
“which should have delayed the transfer.”
Id. Finally, defendant Roger denied Plaintiff's
appeal of the SMU placement after Plaintiff explained the
retaliation in his appeal. Id.
seeks compensatory and punitive damages as well as “an
injunction ordering Plaintiff['s] release from punitive
segregation.” Id. at 8.
Plaintiff is proceeding in forma pauperis, the Court
must screen the FAC and is required to dismiss the case at
any time if it concludes the action is frivolous or
malicious, fails to state a claim on which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28
U.S.C. § 1915A(b); see Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998).
determining whether a complaint fails to state a claim for
screening purposes, the Court applies the same pleading
standard from Rule 8 of the Federal Rules of Civil Procedure
(“Rule 8”) as it would when evaluating a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6).
See Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir.
2012). Under Rule 8(a), a complaint must contain a