Benyamini v. Ogbeide et al

Filing 71

ORDER signed by District Judge Kimberly J. Mueller on 09/25/17 ORDERING that this action will not be reopened.(Mena-Sanchez, L)

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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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No. 2:10-cv-0101 KJM DB

v.

ORDER

V. OGBEIDE, et al.,

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Defendants.

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Defendant Baker has filed a “Request for Clarification Regarding Whether the

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Court Intends to Disturb Its Previous Order Dismissing this Case.” ECF No. 68. For the reasons

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explained below, this action will remain closed.
Defendant’s request arises from this court’s September 21, 2012 order in which the

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court signaled that it was sua sponte reconsidering its order in this case adopting findings and

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recommendations and revoking plaintiff’s in forma pauperis status, as well as the subsequent

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order closing the case for non-payment of the filing fee. ECF No. 59 at 3-4. After review of

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defendant Baker’s objections to the earlier order, ECF No. 60, the court directed defendant Baker

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to inform the court within seven days of resolution of a motion for reconsideration plaintiff had

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filed in the United States Court of Appeals for the Ninth Circuit (hereafter Ninth Circuit). ECF

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No. 61.

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On January 12, 2015, defendant Baker filed notice stating that it did not appear the

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Ninth Circuit would address plaintiff’s motion for reconsideration in view of a prior order stating

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no motions for reconsideration would be addressed in the pending appeal. ECF No. 63 at 3-4.

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On March 5, 2015, the court granted plaintiff fourteen days to respond. ECF No. 65. On April 3,

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2015, plaintiff filed a response. ECF No. 66. Good cause appearing, the court has considered

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plaintiff’s response despite its apparent untimeliness.

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Review of the record shows that plaintiff has twice taken appeals to the Ninth

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Circuit from orders issued in this action. See ECF Nos. 44, 55. In both appeals, the Ninth Circuit

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issued orders finding that plaintiff “has three or more prior actions or appeals dismissed as

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frivolous or for failure to state a claim and because appellant has not alleged any imminent danger

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of serious bodily injury. See 28 U.S.C. § 1915(g).” Case No. 11-17218 (9th Cir.), Dkt. Entry 6,

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Page 1; see also Case No. 12-16031 (9th Cir.), Dkt. Entry 7, Page 1. In the latter appeal, the

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Ninth Circuit denied plaintiff’s motion to proceed in forma pauperis on appeal based on the

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finding. Case No. 12-16031, Dkt. Entry 7, Page 1. In both cases, the Ninth Circuit required

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plaintiff to pay the filing fee and then dismissed the appeals for his failure to do so. See Case No.

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11-17218, Dkt. Entry 11; Case 12-16031, Dkt. Entry 9.

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The Ninth Circuit did not identify the three or more actions that formed the basis

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of its orders. Absent a showing that the Ninth Circuit’s orders were based on cases other than

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those identified as strikes in this court’s original order or that one of the strikes relied on by the

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Ninth Circuit was incurred after this action was filed, the Ninth Circuit’s findings are binding on

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this court. No such showing has been made.

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Accordingly, IT IS HEREBY ORDERED that this action will not be reopened.
DATED: September 25, 2017.

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UNITED STATES DISTRICT JUDGE

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