Benyamini v. Forshythe et al

Filing 26

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/20/11 ORDERING that Clerk is directed to randomly assign a US District Judge to this case; US District Judge Frank C. Damrell, Jr. randomly assigned; RECOMMENDING that this action be dismissed for failure to prosecute. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ROBERT P. BENYAMINI,
Plaintiff,

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No. CIV S-09-2453 EFB P

vs.
M. FORSYTHE, et al.,
ORDER AND
FINDINGS AND RECOMMENDATIONS

Defendants.
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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. Plaintiff commenced this action on September 1, 2009. Dckt. No. 1. On

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February 25, 2010, the court screened plaintiff’s complaint pursuant to 28 U.S.C. § 1915A. The

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court found service appropriate as to some defendants, but not all, and granted plaintiff thirty

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days to either return documents necessary to effect service of process on defendants against

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whom plaintiff had stated a cognizable claim, or to file an amended complaint. Dckt. No. 7. The

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time for acting passed, and plaintiff did not comply with the court’s order. On April 12, 2011,

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the court granted plaintiff an extension of 21 days to comply. Dckt. No. 12. As of August 30,

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2010, plaintiff had still not complied with the February 25, 2010 order, but the court granted

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plaintiff another 30 days in which to comply. Dckt. No. 17. Thereafter, plaintiff requested a

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ninety day extension of time. Dckt. No. 18. On October 1, 2010 the court granted plaintiff an

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additional 30 day extension of time, and informed plaintiff that no further extensions of time
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would be granted. Dckt. No. 19. Finally, on November 1, 2010, nine months after originally

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ordered, plaintiff filed an amended complaint. Dckt. No. 20.

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On March 25, 2011, the court found that plaintiff’s amended complaint stated potentially

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cognizable claims as to defendants T. Forsythe, M. Forsythe, Leese, Fenninokon, Dysekevice,

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Ramirez, Hurtado, and O’Brian. Dckt. No. 21. The order found that plaintiff had failed to state

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a cognizable equal protection claim or claims against defendants Thumser, Peterson and Arnold.

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Plaintiff was directed to submit the documents to effect service of the amended complaint on T.

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Forsythe, M. Forsythe, Leese, Fenninokon, Dysekevice, Ramirez, Hurtado, and O’Brian or to

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file an amended complaint within thirty days. The order warned plaintiff that failure to comply

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would result in a recommendation that this action be dismissed. The time for acting has passed

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and plaintiff has not submitted the materials necessary for service on the above-listed defendants,

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has not filed an amended complaint, or otherwise responded to the court’s order.

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Accordingly, the Clerk is directed to randomly assign a United States District Judge to
this case.
Further, it is hereby RECOMMENDED that this action be dismissed for failure to
prosecute. See Fed. R. Civ. P. 41(b).

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: May 20, 2011.

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