Benyamini v. Ogbeide et al
ORDER signed by District Judge Kimberly J. Mueller on 09/25/17 ORDERING that this action will not be reopened.(Mena-Sanchez, L)
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
No. 2:10-cv-0101 KJM DB
V. OGBEIDE, et al.,
Defendant Baker has filed a “Request for Clarification Regarding Whether the
Court Intends to Disturb Its Previous Order Dismissing this Case.” ECF No. 68. For the reasons
explained below, this action will remain closed.
Defendant’s request arises from this court’s September 21, 2012 order in which the
court signaled that it was sua sponte reconsidering its order in this case adopting findings and
recommendations and revoking plaintiff’s in forma pauperis status, as well as the subsequent
order closing the case for non-payment of the filing fee. ECF No. 59 at 3-4. After review of
defendant Baker’s objections to the earlier order, ECF No. 60, the court directed defendant Baker
to inform the court within seven days of resolution of a motion for reconsideration plaintiff had
filed in the United States Court of Appeals for the Ninth Circuit (hereafter Ninth Circuit). ECF
On January 12, 2015, defendant Baker filed notice stating that it did not appear the
Ninth Circuit would address plaintiff’s motion for reconsideration in view of a prior order stating
no motions for reconsideration would be addressed in the pending appeal. ECF No. 63 at 3-4.
On March 5, 2015, the court granted plaintiff fourteen days to respond. ECF No. 65. On April 3,
2015, plaintiff filed a response. ECF No. 66. Good cause appearing, the court has considered
plaintiff’s response despite its apparent untimeliness.
Review of the record shows that plaintiff has twice taken appeals to the Ninth
Circuit from orders issued in this action. See ECF Nos. 44, 55. In both appeals, the Ninth Circuit
issued orders finding that plaintiff “has three or more prior actions or appeals dismissed as
frivolous or for failure to state a claim and because appellant has not alleged any imminent danger
of serious bodily injury. See 28 U.S.C. § 1915(g).” Case No. 11-17218 (9th Cir.), Dkt. Entry 6,
Page 1; see also Case No. 12-16031 (9th Cir.), Dkt. Entry 7, Page 1. In the latter appeal, the
Ninth Circuit denied plaintiff’s motion to proceed in forma pauperis on appeal based on the
finding. Case No. 12-16031, Dkt. Entry 7, Page 1. In both cases, the Ninth Circuit required
plaintiff to pay the filing fee and then dismissed the appeals for his failure to do so. See Case No.
11-17218, Dkt. Entry 11; Case 12-16031, Dkt. Entry 9.
The Ninth Circuit did not identify the three or more actions that formed the basis
of its orders. Absent a showing that the Ninth Circuit’s orders were based on cases other than
those identified as strikes in this court’s original order or that one of the strikes relied on by the
Ninth Circuit was incurred after this action was filed, the Ninth Circuit’s findings are binding on
this court. No such showing has been made.
Accordingly, IT IS HEREBY ORDERED that this action will not be reopened.
DATED: September 25, 2017.
UNITED STATES DISTRICT JUDGE
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