Benyamini v. Ogbeide et al
Filing
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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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