Higginbotham v. Duffy

Filing 12

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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY W. HIGGINBOTHAM,

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Plaintiff,

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v.

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BRYAN DUFFY,

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No. 2:14-cv-1702 CKD P

ORDER AND
FINDINGS AND RECOMMENDATIONS
Defendant.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis, who seeks relief

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pursuant to 42 U.S.C. § 1983. On January 9, 2015, plaintiff’s complaint was dismissed with

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thirty days’ leave to amend. (ECF No. 8.) Plaintiff has filed an amended complaint, now before

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the court. (ECF No. 11.)

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The court is required to screen complaints brought by prisoners seeking relief against a

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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The

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court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally

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“frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

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Having reviewed the amended complaint, the undersigned concludes that it fails to cure

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the defects of the original complaint as discussed in the January 9, 2015 screening order. See

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Garrett v. Perez, 2014 WL 6610506, *4 (E.D. Cal. Nov. 20, 2014) (“Although the [‘R suffix’]
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designation may be stigmatizing for inmates, the designation is nevertheless merely an

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administrative prison custody classification, and the mere reputational stain of an ‘R’ suffix does

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not impose ‘atypical and significant hardship on the incident in relation to the ordinary incidents

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of prison life.’” (quoting Wilkinson v. Austin, 545 U.S. 209, 223 (2005)) (collecting cases).

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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.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, plaintiff may file written objections

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with the court. Such a document should be captioned "Objections to Magistrate Judge's Findings

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and Recommendations." Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153

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(9th Cir. 1991).

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Dated: March 4, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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