(PC) Briggs v. Baughman, No. 2:2018cv01822 - Document 13 (E.D. Cal. 2019)
Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 04/10/19 ORDERING the Clerk of the Court assign a District Court Judge to this case. Also, RECOMMENDING that plaintiff's amended complaint be dismissed; and this case be closed. Assigned and referred to Judge Kimberly J. Mueller. 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 JOHNNY LEE BRIGGS, 12 13 14 15 No. 2:18-cv-1822 CKD P Plaintiff, v. ORDER AND D. BAUGHMAN, FINDINGS AND RECOMMENDATIONS Defendants. 16 17 Plaintiff is a state prisoner proceeding in forma pauperis with an action for violation of 18 civil rights under 42 U.S.C. § 1983. On October 25, 2018, the court screened plaintiff’s 19 complaint, as the court is required to do under 28 U.S.C. § 1915A(a) and dismissed the complaint 20 with leave to amend. Plaintiff has now filed an amended complaint. 21 Under 28 U.S.C. § 1915A(a), the court must dismiss a complaint or portion thereof if the 22 prisoner has raised claims that are legally “frivolous or malicious,” that fail to state a claim upon 23 which relief may be granted, or that seek monetary relief from a defendant who is immune from 24 such relief. 28 U.S.C. § 1915A(b)(1),(2). 25 In his amended complaint, plaintiff seeks an order reducing bail to $25,000. However, 26 plaintiff is already committed to the California Department of Corrections and Rehabilitation and 27 nothing suggests plaintiff is in anyway eligible for release on bail. Plaintiff also challenges the 28 execution of his sentence asserting that he is being “unlawfully restrained.” However, when a 1 1 state prisoner challenges the legality of his custody and the relief he seeks is the determination of 2 his entitlement to an earlier or immediate release, his sole federal remedy is a writ of habeas 3 corpus. Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). 4 For these reasons, plaintiff has not stated a claim upon which relief can be granted in his 5 amended complaint. Considering the direction provided to plaintiff upon the dismissal of his 6 original complaint as to how he might state a claim upon which relief can be granted in an 7 amended complaint, and the contents of his amended complaint, granting plaintiff leave to amend 8 a second time appears futile. Therefore, the court will recommend that the amended complaint be 9 dismissed and this case be closed. 10 11 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court assign a district court judge to this case. 12 IT IS HEREBY RECOMMENDED that: 13 1. Plaintiff’s amended complaint be dismissed; and 14 2. This case be closed. 15 These findings and recommendations are submitted to the United States District Judge 16 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen after 17 being served with these findings and recommendations, plaintiff may file written objections with 18 the court. The document should be captioned “Objections to Magistrate Judge’s Findings and 19 Recommendations.” Plaintiff is advised that failure to file objections within the specified time 20 waives the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 21 1991). 22 Dated: April 10, 2019 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 1 brig1822.fnrs 2
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