The opinion of the court was delivered by: Judge Caputo
(MAGISTRATE JUDGE BLEWITT)
Presently before the Court are Magistrate Judge Blewitt's Report and Recommendation and Plaintiff Clarence Schreane's objections. Magistrate Judge Blewitt recommended that Mr. Schreane's second amended complaint be dismissed with prejudice. Because Mr. Schreane fails to state a claim upon which relief may be granted, and further amendment of his complaint would be futile, the Report and Recommendation will be adopted. Mr. Schreane's complaint will be dismissed with prejudice.
The facts as alleged in Mr. Schreane's second amended complaint are as follows: Mr. Schreane was written up for a violation of Bureau of Prisons Code 205, engaging in a sexual act. Mr. Schreane requested the surveillance videotape of the alleged incident in order to defend himself. As retaliation for his request, Defendant Officer Swartzfager made false allegations against him and wrote up a false incident report charging him with a second Code 205 violation. Defendant Lieutenant Edward refused to allow Mr. Schreane to view the surveillance videotapes, failed to advise him regarding his due process rights, and failed to review the videotape himself. Defendant Officer Renda denied Mr. Schreane's requests to call witnesses or play the surveillance videotape at his disciplinary hearing. His requests for a polygraph test and fingerprint analysis were also denied. Officer Renda found him guilty of the chargers without any supporting evidence other than the correctional officers' misconduct reports. Defendant Warden Holt reviewed the disciplinary report, but failed to review the surveillance videotape.
Mr. Schreane was also charged with possession of an illegal object inside an ink pen. Defendant Officer Alonga planted the item inside Mr. Schreane's pen to set him up for the charge. Again, Mr. Schreane asked to view the videotape surveillance in order to defend himself, but his request was denied. As a result, he was kept in the Special Handling Unit and lost good time credits.
Mr. Schreane also had several bottles of prayer oils taken from him as a result of the property officer, Defendant Officer Donahue, negligently failing to secure the oils. Mr. Schreane wrote Warden Holt about the incident, requesting that the oils be returned and that the Warden review the surveillance tapes. Warden Holt stated that he would not review the surveillance tapes and would sustain whatever decision was made by the Disciplinary Hearing Officer.
Mr. Schreane filed this action on April 1, 2011. He filed an amended complaint on April 25, 2011. On June 13, 2011, Magistrate Judge Blewitt recommended the dismissal of all Mr. Schreane's claims. I adopted the Report and Recommendation in part and rejected it in part, dismissing all Mr. Schreane's claims with prejudice except his Equal Protection Claim, which I dismissed without prejudice. I gave Mr. Schreane twenty-one days to file a second amended complaint stating with specificity a proper claim under the Equal Protection Clause.
Mr. Schreane did not file his second amended complaint in time, so on December 20, 2011, Magistrate Judge Blewitt recommended dismissal of the case for failure to prosecute. Mr. Schreane eventually filed his second amended complaint on January 5, 2012. Based on Mr. Schreane's filing, I rejected Magistrate Judge Blewitt's Report and Recommendation.
Magistrate Judge Blewitt reviewed Mr. Schreane's second amended complaint pursuant to 28 U.S.C. § 1915(e)(2) which provides that for proceedings in forma pauperis:
[T]he court shall dismiss the case at any time if the court determines that-- (A) the allegation of poverty is untrue; or (B) the action or appeal-- (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
On April 13, 2012, Magistrate Judge Blewitt filed the instant Report and Recommendation to dismiss Mr. Schreane's second amended complaint with prejudice. Mr. Schreane filed his objections on April 25, 2012. Thus, ...