The opinion of the court was delivered by: David Alan Ezra United States District Judge
ORDER DISMISSING FIRST AMENDED COMPLAINT WITH LEAVE GRANTED TO AMEND
On March 12, 2012, pro se Plaintiff William A. Cornelio, III's original prisoner civil rights complaint was dismissed with leave granted to amend. ECF #9. Before the court is Plaintiff's first amended complaint ("FAC"). ECF #10. Plaintiff complains of actions that occurred while he was housed at the Maui Community Correctional Center ("MCCC"). The FAC names MCCC Warden James Hirano, Lieutenant Fujimoto, Lieutenant John Doe #2, Sergeant Caravalho, Adult Correctional Officer ("ACO") Pinto, and ACO Jane Doe #1 (collectively, "Defendants"),*fn1 in their individual capacities. Plaintiff claims that Defendants violated his constitutional rights to due process while he was incarcerated at MCCC.
The FAC is DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915(A)(b)(1), for failure to state a claim. Plaintiff is again granted leave to amend as discussed below.
The court is required to screen all civil actions brought by prisoners that seek redress from a governmental entity, officer, or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must dismiss a complaint in full or in part if its claims are legally frivolous or malicious, fail to state a claim on which relief may be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2); 28 U.S.C. § 1915A(b); 42 U.S.C. § 1997e
A complaint may be dismissed for failure to state a claim for (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). To state a claim, a pleading 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). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, ----, 129 S. Ct. 1937, 1949 (2009).
"Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
"[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 1951.
The court must construe a pro se complaint liberally, accept all allegations of material fact as true, and construe those facts in the light most favorable to the plaintiff. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). Leave to amend should be granted if it appears at all possible that the plaintiff can correct the defects of his or her complaint. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
II. BACKGROUND AND CLAIMS
On December 6, 2011, Defendant ACO Jane Doe charged Plaintiff with misconduct at MCCC for unauthorized contact with another prisoner, Ashley Akana. Plaintiff was given notice of the charges and a hearing was scheduled for December 15, 2011. At the hearing, Plaintiff requested to call ACO Jane Doe as a witness, because her report allegedly stated that she did not actually see Plaintiff speaking with Akana. The Adjustment Committee, including Defendants Fujimoto and Caravalho, denied Plaintiff's request. Plaintiff claims that Akana admitted that she initiated the contact with Plaintiff, because "she liked him." ECF #10, FAC at 7. On December 16, 2011, Fujimoto and Caravalho found Plaintiff guilty, served him with a written report of their findings, and sanctioned him with fourteen days loss of privileges. Plaintiff appealed this decision through the prison grievance process and Warden Hirano denied his appeal.
Plaintiff next broadly alleges that, on December 31, 2011, "defendants" housed Ashley Akana's husband, inmate Noah Borgman, with Plaintiff in Module-A, to provoke a confrontation between them. See FAC at 8. Plaintiff identifies Lieutenant John Doe #2 as responsible for housing Plaintiff in Module-A, but does not specify who made the decision to put Borgman in the same Module. Id. at 3. Plaintiff claims that, after Defendant ACO Pinto "abandoned his post," Borgman assaulted Plaintiff without provocation. FAC at 8. Plaintiff says he reacted by putting his hands in the air and backing out of the recreation area into the multi-purpose area, where Pinto was located. Plaintiff says that Pinto, seeing this, ran past him and tackled Borgman, stopping the altercation. Pinto charged Plaintiff with fighting; it is unclear if Pinto similarly charged Borgman. Plaintiff was given notice of the charges on January 1, 2012, and a hearing was held the next day, January 2, 2012. Plaintiff says he again requested witnesses, but was denied. Fujimoto and Caravalho found Plaintiff guilty and sanctioned him to thirty days in segregation. Plaintiff grieved this decision, and Warden Hirano denied the grievance.
Plaintiff alleges that, because of these two misconduct reports, his work furlough program was cancelled, delaying his anticipated early release. Plaintiff alleges that Defendants' conduct violated his rights to due process. He seeks expungement of the misconduct reports, restoration of all privileges, damages, and declaratory judgment.
"To sustain an action under section 1983, a plaintiff must show '(1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a federal constitutional or statutory right.'" Hydrick v. Hunter, 500 F.3d 978, 987 (9th Cir. 2007) (citation omitted), vacated and remanded on other grounds, 129 S. Ct. 2431 (2009); see also West v. Atkins, 487 U.S. 42, 48 (1988);