Benyamini v. Mendoza et al

Filing 101

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 3/16/2012 RECOMMENDING that plaintiff's 100 "motion for emergency stay and preliminary injunction" be denied. Referred to Judge Lawrence K. Karlton; Objections due within 20 days. (Yin, K)

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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 BENYAMINI,

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Plaintiff,

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vs.

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No. CIV S-09-2602 LKK GGH P

MENDOZA, et al.,

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Defendants.

FINDINGS AND RECOMMENDATIONS
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There are a number of matters pending before the court in the instant prisoner

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civil rights action which will be addressed in a subsequent order/findings and recommendations.

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At this time the court will, however, consider plaintiff’s “motion for emergency stay and

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preliminary injunction,” filed on March 13, 2012. In that putative motion, plaintiff states that he

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was, on March 6, 2012, “locked up in ad seg at Pelican Bay Prison, most likely for having sent a

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letter to the warden and internal affairs on 3-5-12 due to threats by a Sgt. Whelsh w[h]o stated if I

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w[]ent out on my parole date in 3 months 6-10-12 I better not care abou[]t a Middle Eastern

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inmate who was taken down for no good reason and should not try to be a witness.” Motion, p.

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1. Plaintiff claims he was also threatened by some unnamed staff member after having filed a

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staff complaint when someone had threatened to “beat [his] ass.” Id. Plaintiff claims that he was

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placed in a cage on March 6, 2012, even though it was known that he suffers from
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claustrophobia, after having received his “forced medications” and the plexiglass cage was taped

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over with paper over the top half. Id. Plaintiff states that he went “man down,” after suffering

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chest pains as he does in tight enclosures. Id. Plaintiff was threatened with being sprayed if he

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did not stop yelling “man down or hitting the cage door,” and was removed and placed on a

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gurney and was seen by an LVN who stopped checking on him saying he was “uncooperative,”

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which plaintiff blames on the actions of the unnamed correctional officers. Id., at 1-2. Plaintiff

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was given a choice to go back to the cage and to receive an EKG or to return to his cell; plaintiff

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chose the latter, evidently due to his claustrophobia. Id., at 2. Plaintiff continues with claims

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against the generally unnamed staff at Pelican Bay State Prison and asks the court to order a

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polygraph and to have him removed from ad seg. Id., at 3.

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In the instant action, plaintiff is proceeding against defendants at California State

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Prison - Sacramento on an amended complaint, filed on July 23, 2010, as subsequently modified

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by court orders. See docket # 22, # 24, # 29. Plaintiff filed a notice of change of address to

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Pelican Bay State Prison, on December 27, 2011, long after this action was initiated on

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September 17, 2009. Usually persons or entities not parties to an action are not subject to orders

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for injunctive relief. Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 89 S. Ct.

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1562 (1969). Plaintiff, a frequent filer of motions in this case, is no stranger to litigation and is

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well aware of how to file a civil rights complaint if he wishes to proceed against any personnel at

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his present place of incarceration.

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Accordingly, IT IS RECOMMENDED that plaintiff’s “motion for emergency stay
and preliminary injunction,” filed on March 13, 2012 (docket # 100), be denied.

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These findings and recommendations are submitted to the United States District

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

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days 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.” Any reply to the objections
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shall be served and filed within ten days after service of the objections. The parties are advised

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that failure to file objections within the specified time may waive the right to appeal the District

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Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: March 16, 2012

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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beny2602.ord

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