Benyamini v. Ogbeide et al

Filing 42

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)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT P. BENYAMINI, Plaintiff, 11 vs. 12 13 No. CIV S-10-0101 KJM GGH P V. OGBEIDE, et al., Defendants. 14 ORDER / 15 Plaintiff, a state prisoner proceeding pro se, has filed this civil rights action 16 17 seeking relief under 42 U.S.C. § 1983. The matter was referred to a United States Magistrate 18 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, 19 20 which were served on the parties and which contained notice to the parties that any objections to 21 the findings and recommendations were to be filed within fourteen days. Plaintiff filed belated 22 objections to the findings and recommendations. Although the court in its discretion could 23 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, 24 25 the court has conducted a de novo review of this case. Having carefully reviewed the file, the 26 ///// 1 1 court finds the findings and recommendations to be supported by the record and by the proper 2 analysis. 3 Plaintiff also has filed a motion for a “permanent stay,” in light of an impending 4 transfer to solitary housing. (ECF 40.) Defendants oppose the stay. (ECF 41.) Upon review of 5 the parties’ briefing, and consideration of the applicable law, the court declines to impose a stay. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. The findings and recommendations filed May 23, 2011 (ECF 38), are adopted 8 9 in full. 2. The unserved defendant Byrd is dismissed without prejudice from this action, 10 see Fed. R. Civ. P. 4(m), for the reasons set forth in the magistrate judge’s Order filed on January 11 28, 2011 (ECF 33), and plaintiff having failed to show good cause in response to that order as to 12 why defendant Byrd should not be dismissed. 13 3. Defendant Baker’s November 23, 2010 motion for an order revoking 14 plaintiff’s in forma pauperis status (ECF 24) is granted and plaintiff is ordered to pay the filing 15 fee in full within 28 days, failing which, this case will be dismissed. 16 17 4. Plaintiff’s motion for a stay (ECF 40) is denied. DATED: September 6, 2011. 18 19 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 2

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