(PC) Beaton v. U.S. Immigration

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA PAUL NIVARD BEATON, No. 2:19-cv-2039 TLN CKD P 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS U.S. IMMIGRATION, et al., 15 Defendants.

17 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.

22 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.

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 | 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.

4 | 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. § 7 | 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.

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 || 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.

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 | 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 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). 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. YIst, 951 F.2d 1153 (9th Cir. | 1991).

25 | Dated: May 28, 2020 bh rdf ht / {a— 26 CAROLYN K DELANEY 7 UNITED STATES MAGISTRATE JUDGE | 1/beat2039.dis