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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT BENYAMINI, 12 Plaintiff, 13 14 No. 2:10-cv-0101 KJM DB v. ORDER V. OGBEIDE, et al., 15 Defendants. 16 Defendant Baker has filed a “Request for Clarification Regarding Whether the 17 18 Court Intends to Disturb Its Previous Order Dismissing this Case.” ECF No. 68. For the reasons 19 explained below, this action will remain closed. Defendant’s request arises from this court’s September 21, 2012 order in which the 20 21 court signaled that it was sua sponte reconsidering its order in this case adopting findings and 22 recommendations and revoking plaintiff’s in forma pauperis status, as well as the subsequent 23 order closing the case for non-payment of the filing fee. ECF No. 59 at 3-4. After review of 24 defendant Baker’s objections to the earlier order, ECF No. 60, the court directed defendant Baker 25 to inform the court within seven days of resolution of a motion for reconsideration plaintiff had 26 filed in the United States Court of Appeals for the Ninth Circuit (hereafter Ninth Circuit). ECF 27 No. 61. 28 ///// 1 1 On January 12, 2015, defendant Baker filed notice stating that it did not appear the 2 Ninth Circuit would address plaintiff’s motion for reconsideration in view of a prior order stating 3 no motions for reconsideration would be addressed in the pending appeal. ECF No. 63 at 3-4. 4 On March 5, 2015, the court granted plaintiff fourteen days to respond. ECF No. 65. On April 3, 5 2015, plaintiff filed a response. ECF No. 66. Good cause appearing, the court has considered 6 plaintiff’s response despite its apparent untimeliness. 7 Review of the record shows that plaintiff has twice taken appeals to the Ninth 8 Circuit from orders issued in this action. See ECF Nos. 44, 55. In both appeals, the Ninth Circuit 9 issued orders finding that plaintiff “has three or more prior actions or appeals dismissed as 10 frivolous or for failure to state a claim and because appellant has not alleged any imminent danger 11 of serious bodily injury. See 28 U.S.C. § 1915(g).” Case No. 11-17218 (9th Cir.), Dkt. Entry 6, 12 Page 1; see also Case No. 12-16031 (9th Cir.), Dkt. Entry 7, Page 1. In the latter appeal, the 13 Ninth Circuit denied plaintiff’s motion to proceed in forma pauperis on appeal based on the 14 finding. Case No. 12-16031, Dkt. Entry 7, Page 1. In both cases, the Ninth Circuit required 15 plaintiff to pay the filing fee and then dismissed the appeals for his failure to do so. See Case No. 16 11-17218, Dkt. Entry 11; Case 12-16031, Dkt. Entry 9. 17 The Ninth Circuit did not identify the three or more actions that formed the basis 18 of its orders. Absent a showing that the Ninth Circuit’s orders were based on cases other than 19 those identified as strikes in this court’s original order or that one of the strikes relied on by the 20 Ninth Circuit was incurred after this action was filed, the Ninth Circuit’s findings are binding on 21 this court. No such showing has been made. 22 23 Accordingly, IT IS HEREBY ORDERED that this action will not be reopened. DATED: September 25, 2017. 24 25 26 UNITED STATES DISTRICT JUDGE 27 28 2

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