Benyamini v. Hommer et al

Filing 10

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 10/19/11 RECOMMENDING that 8 MOTION to STAY and 7 MOTION for Emergency Transfer be denied; and this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller; Objections to F&R due within 14 days.(Dillon, M)

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IN THE 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,

No. CIV S-11-2317 KJM GGH P

vs.
M.C. HOMMER, et al.,

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Defendants.

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FINDINGS & RECOMMENDATIONS
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Plaintiff, a state prisoner proceeding pro se, filed a civil rights action pursuant to

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42 U.S.C. § 1983 on August 31, 2011. However plaintiff did not file an application to proceed in

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forma pauperis or pay the required filing fee, so on September 27, 2011, the undersigned ordered

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a copy of the in forma pauperis application to be sent to plaintiff and provided plaintiff thirty

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days to return the completed application. Plaintiff has not submitted an application to proceed in

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forma pauperis but did file a motion for an emergency transfer and a motion to stay the

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proceedings.1 As there is no operative complaint, no defendants have been served.

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Federal law requires that a filing fee be paid for the commencement of a civil
action, 28 U.S.C. § 1914, and if one cannot afford to pay the fee, one seeks permission to file in

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Plaintiff apparently filed the same motions in his other cases in this court including No.
CIV S-09-2602 LKK GGH, which is also before the undersigned.
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forma pauperis. While not jurisdictional prerequisites for the maintenance of a suit in federal

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court, neither are the statutes to be ignored – the statutes remain requirements except in

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extraordinary situations. Casanova v. Dubois, 304 F.3d 75, 80 (1st Cir. 2002) (not jurisdictional

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but the requirement derives from federal statutes and local rules). E.D. Cal. Local Rule 121

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mandates that the Clerk shall collect fees before processing a case (unless otherwise IFP).

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Especially in light of plaintiff’s stated inability to keep up with his heavy caseload, the court

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exercises its discretion not to proceed further with this lawsuit because of the non-payment of

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fees or the filing of an IFP application.

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With respect to the motion to stay, plaintiff seeks to stay the case as he is having

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difficulty litigating his various cases. A stay is not appropriate in this situation as there is no

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appreciable end date for the stay, and the non-appearing defendants may well be prejudiced by

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undue delay. As this case has only just commenced, the undersigned will recommend that it be

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dismissed without prejudice, as it appears from plaintiff’s filings that he is unable to continue at

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this time, but plaintiff may re-file this case at a future date. If plaintiff wishes to proceed now

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with this case he may indicate so in objections and must also file an application to proceed in

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forma pauperis.

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In accordance with the above, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s motions (Docs. 7, 8) be denied;

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2. This action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen

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days after being served with these findings and recommendations, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: October 19, 2011

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE
GGH: AB
beny2317.ord

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