(PC) Higginbotham v. Duffy, No. 2:2014cv01702 - Document 12 (E.D. Cal. 2015)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 03/04/15 ORDERING the clerk of court assign a District Judge to this action. U.S. District Judge John A. Mendez randomly assigned to this action. Also, RECOMMENDING that this action be dismissed with prejudice for failure to state a claim. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY W. HIGGINBOTHAM, 12 Plaintiff, 13 v. 14 BRYAN DUFFY, 15 No. 2:14-cv-1702 CKD P ORDER AND FINDINGS AND RECOMMENDATIONS Defendant. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief 18 pursuant to 42 U.S.C. § 1983. On January 9, 2015, plaintiff’s complaint was dismissed with 19 thirty days’ leave to amend. (ECF No. 8.) Plaintiff has filed an amended complaint, now before 20 the court. (ECF No. 11.) 21 The court is required to screen complaints brought by prisoners seeking relief against a 22 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 23 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 24 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 25 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2). 26 Having reviewed the amended complaint, the undersigned concludes that it fails to cure 27 the defects of the original complaint as discussed in the January 9, 2015 screening order. See 28 Garrett v. Perez, 2014 WL 6610506, *4 (E.D. Cal. Nov. 20, 2014) (“Although the [‘R suffix’] 1 1 designation may be stigmatizing for inmates, the designation is nevertheless merely an 2 administrative prison custody classification, and the mere reputational stain of an ‘R’ suffix does 3 not impose ‘atypical and significant hardship on the incident in relation to the ordinary incidents 4 of prison life.’” (quoting Wilkinson v. Austin, 545 U.S. 209, 223 (2005)) (collecting cases). 5 6 7 8 9 10 Because it appears that another round of amendment would be futile, the undersigned will recommend dismissal of this action. Accordingly, IT IS HEREBY ORDERED that the Clerk of Court assign a district judge to this action. IT IS HEREBY RECOMMENDED that this action be dismissed with prejudice for failure to state a claim. 11 These findings and recommendations are submitted to the United States District Judge 12 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 13 after being served with these findings and recommendations, plaintiff may file written objections 14 with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings 15 and Recommendations." Plaintiff is advised that failure to file objections within the specified 16 time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 17 (9th Cir. 1991). 18 Dated: March 4, 2015 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 2 / litt1964.fac 26 27 28 2