(PC) Beaton v. U.S. Immigration ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL NIVARD BEATON, No. 2:19-cv-2039 TLN CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 U.S. IMMIGRATION, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights 18 under 42 U.S.C. § 1983. On April 15, 2020, the court screened plaintiff’s amended complaint as 19 the court is required to do under 28 U.S.C. § 1915A(a). The court dismissed plaintiff’s amended 20 complaint with leave to amend and gave plaintiff instructions and guidance as to the contents of 21 his second amended complaint. Plaintiff has now filed a second amended complaint. 22 As plaintiff now knows, the court is required to screen complaints brought by prisoners 23 seeking relief against a governmental entity or officer or employee of a governmental entity. 28 24 U.S.C. § 1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has 25 raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which relief 26 may be granted, or that seek monetary relief from a defendant who is immune from such relief. 27 28 U.S.C. § 1915A(b)(1),(2). 28 ///// MAS EMIS PRIN INES MVOC te POI □□ ev 1 In his second amended complaint, plaintiff appears to challenge, as he did in his amended 2 | complaint, the fact that he has been identified by the California Department of Corrections and 3 | Rehabilitation as a “resident alien” rather than a naturalized citizen of the United States. 4 | However, plaintiff again fails to identify any consequences of this classification. Most 5 | importantly, plaintiff fails to point to any facts suggesting U.S. Immigration and Customs 6 | Enforcement (ICE) has commenced removal proceedings against plaintiff pursuant to 8 U.S.C. § 7 | 1229a. Further, even assuming removal proceedings have commenced in some respect, plaintiff 8 | fails to point to anything suggesting recourse can be sought in a $1983 action and not within the 9 | explicit confines of 8 U.S.C. § 1229a. 10 Accordingly, plaintiff’s second amended complaint fails to state a claim upon which relief 11 can be granted. On two occasions, the court has provided plaintiff with instructions and guidance 12 || as to how he might state a claim upon which relief could be granted. As plaintiff has not been 13 | able to state an actionable claim thus far, granting leave to amend a third time appears futile. 14 In accordance with the above, IT IS HEREBY RECOMMENDED that: 15 1. Plaintiff's second amended complaint be dismissed for failure to state a claim upon 16 | which relief can be granted; and 17 2. This case be closed. 18 These findings and recommendations are submitted to the United States District Judge 19 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen after 20 | being served with these findings and recommendations, plaintiff may file written objections with 21 || the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 22 || Recommendations.” Plaintiff is advised that failure to file objections within the specified time 23 | waives the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 24 | 1991). 25 | Dated: May 28, 2020 bh rdf ht / {a— 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE 28 | 1/beat2039.dis