Benyamini v. Ogbeide et al
ORDER signed by Judge Kimberly J. Mueller on 9/6/11 ORDERING that the FINDINGS AND RECOMMENDATIONS filed 5/23/11 38 are ADOPTED in full; The unserved defendant Byrd is DISMISSED without prejudce from this action. Defendant Baker's 11/23/10 MOT ION for an order revoking Plaintiff's informa pauperis 24 is GRANTED and Plaintiff is ordered to pay the filing fee in full within 28 days, failing which, this case will be dismissed. Plaintiff's Motion for a Stay 40 is DENIED. (Mena-Sanchez, L)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
ROBERT P. BENYAMINI,
No. CIV S-10-0101 KJM GGH P
V. OGBEIDE, et al.,
Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action
seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate
Judge as provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.
On May 23, 2011, the magistrate judge filed findings and recommendations,
which were served on the parties and which contained notice to the parties that any objections to
the findings and recommendations were to be filed within fourteen days. Plaintiff filed belated
objections to the findings and recommendations. Although the court in its discretion could
choose to disregard the objections, the court has considered them before entering this order.
In accordance with the provisions of 28 U.S.C. 636 (b)(1)(C) and Local Rule 304,
the court has conducted a de novo review of this case. Having carefully reviewed the file, the
court finds the findings and recommendations to be supported by the record and by the proper
Plaintiff also has filed a motion for a “permanent stay,” in light of an impending
transfer to solitary housing. (ECF 40.) Defendants oppose the stay. (ECF 41.) Upon review of
the parties’ briefing, and consideration of the applicable law, the court declines to impose a stay.
Accordingly, IT IS HEREBY ORDERED that:
1. The findings and recommendations filed May 23, 2011 (ECF 38), are adopted
2. The unserved defendant Byrd is dismissed without prejudice from this action,
see Fed. R. Civ. P. 4(m), for the reasons set forth in the magistrate judge’s Order filed on January
28, 2011 (ECF 33), and plaintiff having failed to show good cause in response to that order as to
why defendant Byrd should not be dismissed.
3. Defendant Baker’s November 23, 2010 motion for an order revoking
plaintiff’s in forma pauperis status (ECF 24) is granted and plaintiff is ordered to pay the filing
fee in full within 28 days, failing which, this case will be dismissed.
4. Plaintiff’s motion for a stay (ECF 40) is denied.
DATED: September 6, 2011.
UNITED STATES DISTRICT JUDGE
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