Opinion
No. 2:19-cv-2039 TLN CKD P
05-28-2020
PAUL NIVARD BEATON, Plaintiff, v. U.S. IMMIGRATION, et al., Defendants.
FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner proceeding pro se with an action for violation of civil rights under 42 U.S.C. § 1983. On April 15, 2020, the court screened plaintiff's amended complaint as the court is required to do under 28 U.S.C. § 1915A(a). The court dismissed plaintiff's amended complaint with leave to amend and gave plaintiff instructions and guidance as to the contents of his second amended complaint. Plaintiff has now filed a second amended complaint.
As plaintiff now knows, 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). /////
In his second amended complaint, plaintiff appears to challenge, as he did in his amended complaint, the fact that he has been identified by the California Department of Corrections and Rehabilitation as a "resident alien" rather than a naturalized citizen of the United States. However, plaintiff again fails to identify any consequences of this classification. Most importantly, plaintiff fails to point to any facts suggesting U.S. Immigration and Customs Enforcement (ICE) has commenced removal proceedings against plaintiff pursuant to 8 U.S.C. § 1229a. Further, even assuming removal proceedings have commenced in some respect, plaintiff fails to point to anything suggesting recourse can be sought in a §1983 action and not within the explicit confines of 8 U.S.C. § 1229a.
Accordingly, plaintiff's second amended complaint fails to state a claim upon which relief can be granted. On two occasions, the court has provided plaintiff with instructions and guidance as to how he might state a claim upon which relief could be granted. As plaintiff has not been able to state an actionable claim thus far, granting leave to amend a third time appears futile.
In accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Plaintiff's second amended complaint be dismissed for failure to state a claim upon which relief can be granted; and
2. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: May 28, 2020
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1/beat2039.dis