Benyamini v. Vance et al

Filing 8

ORDER signed by Magistrate Judge Dale A. Drozd on 1/16/15 ordering that plaintiff shall submit within 21 days from the date of this order, the appropriate filing fee. (Plummer, M)

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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. 2:13-cv-00910 TLN DAD P

v.

ORDER

S. VANCE,

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Defendants.

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Plaintiff, a former state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C.

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§ 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.

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§ 636(b)(1).
On March 18, 2014, the court ordered plaintiff to either pay the required filing fee of

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$350.00 or file an application to proceed in forma pauperis. (ECF No. 5.) On April 14, 2014,

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plaintiff filed a motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.
Review of court records reveals that, on at least three occasions, lawsuits filed by the

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plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to

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state a claim upon which relief may be granted:

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1. Benyamini v. Anderson, No. 1:07-cv-1596 OWW GS (E.D. Cal.). On May 13, 2009,

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the action was dismissed for failure to state a claim.

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2. Benyamini v. Simpson, No. 2:08-cv-1552 GEB DAD (E.D. Cal.). On June 8, 2009,

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findings and recommendations issued, recommending that the action be dismissed for

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failure to state a claim. On July 8, 2009, the findings and recommendations were adopted

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in full.

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3. Benyamini v. Johnson, No. 11-16971 (9th Cir.). On November 15, 2011, plaintiff was

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denied leave to proceed in forma pauperis because his appeal was deemed frivolous.

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4. Benyamini v. Byrd, No. 11-17218 (9th Cir.). On December 8, 2011, plaintiff was

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denied leave to proceed in forma pauperis because his appeal was deemed frivolous. The

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appellate court also found that plaintiff had three or more prior actions or appeals which

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had been dismissed as frivolous or for failure to state a claim.

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5. Benyamini v. Mendoza, No. 13-15026 (9th Cir.). On August 20, 2014, the appellate

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court upheld the district court’s determination, in case no. 2:09-cv-02602-LKK-AC, that

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three of plaintiff’s prior § 1983 actions had been dismissed for failure to state a claim.

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In light of this history, plaintiff is precluded from proceeding in forma pauperis in this

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action unless he is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).

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Plaintiff has not alleged any facts in his complaint which suggest that he is under imminent

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danger of serious physical injury. Indeed, plaintiff is no longer in state custody. Thus, plaintiff

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must submit the appropriate filing fee in order to proceed with this action.

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In accordance with the foregoing, IT IS HEREBY ORDERED that plaintiff shall submit,

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within twenty-one days from the date of this order, the appropriate filing fee. Plaintiff’s failure to

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comply with this order will result in a recommendation that this action be dismissed.

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Dated: January 16, 2015

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DAD:10
beny0910.1915g.ifp

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