Benyamini v. Terry et al.

Filing 40

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/27/17 ORDERING that plaintiff shall have another 60 days from the date of this order to file any objections to the 9/21/17 findings and recommendations. It is further ORDERED that the Clerk shall re-serve plaintiff with a copy of the 9/21/17 findings and recommendations 35 . Also, RECOMMENDING that plaintiff's emergency continuance of said matters until further notice, construed as a motion to stay 39 be denied. MOTION 39 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, M)

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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. 2:15-cv-2615-TLN-EFB P v. ORDER AND FINDINGS AND RECOMMENDATIONS TERRY, et al., 15 Defendants. 16 Plaintiff is a former state prisoner proceeding without counsel in an action brought under 17 18 42 U.S.C. § 1983. He requests an “emerg[e]ncy continuance of said matters until[ ] further 19 notice,” which the court construes as a motion to stay. ECF No. 39. As discussed below, it is 20 recommended that the motion be denied. “The district court has broad discretion to stay proceedings as an incident to its power to 21 22 control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North 23 American Co., 299 U.S. 248, 254 (1936)). “The proponent of a stay bears the burden of 24 establishing its need.” Id. at 708. Here, plaintiff argues that a stay is necessary because he is now 25 homeless and a restraining order prevents him from accessing his mail and evidence. He claims 26 he “can’t litigate from the streets” and is attempting to “b[u]y [ ] time [to] get on even ground . . . 27 against a prejudicial court and over litigating Attorney Generals.” ECF No. 39 at 4. 28 ///// 1 On September 21, 2017, the court recommended that defendants’ motion to dismiss this 2 action as barred by the statute of limitations be granted and gave the parties fourteen days to file 3 any objections. ECF No. 35. On October 24, 2017, the court granted plaintiff a thirty day 4 extension of time to file objections. ECF No. 38. The allegations in his current request might 5 support a further extension of time but do not warrant the sort of open ended extension sought 6 here. Plaintiff will be granted another sixty day extension of time to file any objections. But a 7 stay in this case, which would be open-ended insofar as plaintiff does not specify exactly what he 8 needs in order to file objections or how much time he will need to accomplish the same, is not 9 appropriate. See Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066 10 (9th Cir. 2007) (“Generally, stays should not be indefinite in nature.”). Absent at least some 11 approximation of the length of the requested stay, the court finds that a discrete extension will 12 better serve the orderly course of justice. The task for which plaintiff seeks more time, it to file 13 objections to the findings and recommendations entered in September. The purpose of the 14 objection period is not to brief the merits of defendants’ motion in the first instance. In any 15 objections, plaintiff need only identify the portions of the findings and recommendations to which 16 he objects, and explain the reasons for his objections. As a one-time courtesy, the court will 17 direct the Clerk to re-serve plaintiff with a copy of the September 21, 2017 findings and 18 recommendations which plaintiff may refer to in identifying which portions he objects. 19 Based on the foregoing, it is ORDERED that plaintiff shall have another sixty days from 20 the date of this order to file any objections to the September 21, 2017 findings and 21 recommendations. It is FURTHER ORDERED that the Clerk shall re-serve plaintiff with a copy 22 of the September 21, 2017 findings and recommendations (ECF No. 35). 23 24 Further, it is RECOMMENDED that plaintiff’s “emerg[e]ncy continuance of said matters until[ ] further notice,” construed as a motion to stay (ECF No. 39), be DENIED. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 27 after being served with these findings and recommendations, any party may file written 28 objections with the court and serve a copy on all parties. Such a document should be captioned 2 1 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 2 within the specified time may waive the right to appeal the District Court’s order. Turner v. 3 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 4 DATED: November 27, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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