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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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. 2:15-cv-2615-TLN-EFB P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

TERRY, et al.,

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Defendants.

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Plaintiff is a former state prisoner proceeding without counsel in an action brought under

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42 U.S.C. § 1983. He requests an “emerg[e]ncy continuance of said matters until[ ] further

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notice,” which the court construes as a motion to stay. ECF No. 39. As discussed below, it is

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recommended that the motion be denied.
“The district court has broad discretion to stay proceedings as an incident to its power to

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control its own docket.” Clinton v. Jones, 520 U.S. 681, 706 (1997) (citing Landis v. North

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American Co., 299 U.S. 248, 254 (1936)). “The proponent of a stay bears the burden of

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establishing its need.” Id. at 708. Here, plaintiff argues that a stay is necessary because he is now

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homeless and a restraining order prevents him from accessing his mail and evidence. He claims

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he “can’t litigate from the streets” and is attempting to “b[u]y [ ] time [to] get on even ground . . .

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against a prejudicial court and over litigating Attorney Generals.” ECF No. 39 at 4.

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On September 21, 2017, the court recommended that defendants’ motion to dismiss this

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action as barred by the statute of limitations be granted and gave the parties fourteen days to file

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any objections. ECF No. 35. On October 24, 2017, the court granted plaintiff a thirty day

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extension of time to file objections. ECF No. 38. The allegations in his current request might

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support a further extension of time but do not warrant the sort of open ended extension sought

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here. Plaintiff will be granted another sixty day extension of time to file any objections. But a

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stay in this case, which would be open-ended insofar as plaintiff does not specify exactly what he

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needs in order to file objections or how much time he will need to accomplish the same, is not

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appropriate. See Dependable Highway Express, Inc. v. Navigators Ins. Co., 498 F.3d 1059, 1066

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(9th Cir. 2007) (“Generally, stays should not be indefinite in nature.”). Absent at least some

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approximation of the length of the requested stay, the court finds that a discrete extension will

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better serve the orderly course of justice. The task for which plaintiff seeks more time, it to file

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objections to the findings and recommendations entered in September. The purpose of the

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objection period is not to brief the merits of defendants’ motion in the first instance. In any

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objections, plaintiff need only identify the portions of the findings and recommendations to which

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he objects, and explain the reasons for his objections. As a one-time courtesy, the court will

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direct the Clerk to re-serve plaintiff with a copy of the September 21, 2017 findings and

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recommendations which plaintiff may refer to in identifying which portions he objects.

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Based on the foregoing, it is ORDERED that plaintiff shall have another sixty days from

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the date of this order to file any objections to the September 21, 2017 findings and

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recommendations. It is FURTHER ORDERED that the Clerk shall re-serve plaintiff with a copy

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of the September 21, 2017 findings and recommendations (ECF No. 35).

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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.

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These findings and recommendations are submitted to the United States District Judge

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

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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.” Failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Turner v.

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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: November 27, 2017.

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