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Benyamini v. Manjuano

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 25, 2009

ROBERT BENYAMINI, PLAINTIFF,
v.
DEBBIE MANJUANO, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge

ORDER DISMISSING CERTAIN CLAIMS, AND DEFENDANTS FROM THIRD AMENDED COMPLAINT, AND REFERRING MATTER BACK TO MAGISTRATE JUDGE FOR SERVICE OF PROCESS (Docs. 35, 36, and 51)

Plaintiff Robert Benyamini is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 12132 (Americans with Disabilities Act). Plaintiff filed this action on August 21, 2006.

On July 1, 2008, the Magistrate Judge screened Plaintiff's third amended complaint, and found that it states a claim against Defendants Manjuano, Wilcox, Wilkerson, and O'Grady for violation of the Eighth Amendment, but does not state any other claims upon which relief may be granted. Because Plaintiff added a new equal protection claim and had not previously been given notice of the deficiencies and an opportunity to amend, the Magistrate Judge ordered Plaintiff to either file a fourth amended complaint curing the deficiencies in his claims or notify the Court of his willingness to proceed only on his cognizable Eighth Amendment claim.

On March 26, 2009, after obtaining multiple extensions of time to file a fourth amended complaint, Plaintiff was granted one final thirty-day extension, and ordered to file his fourth amended complaint or this action would proceed on his third amended complaint against Defendants Manjuano, Wilcox, Wilkerson, and O'Grady for violation of the Eighth Amendment. More than thirty days have passed and Plaintiff has not complied with the Court's order.

Accordingly, having reviewed the third amended complaint and the Magistrate Judge's orders filed on July 1, 2008, and March 26, 2009, it is HEREBY ORDERED that pursuant to 28 U.S.C. § 1915A and 28 U.S.C. § 1915(e)(2)(B)(ii):

1. This action shall proceed as one for damages only on Plaintiff's third amended complaint, filed May 23, 2008, against Defendants Manjuano, Wilcox, Wilkerson, and O'Grady for violation of the Eighth Amendment;

2. Plaintiff's due process claim, equal protection claim, claim for denial of access to the courts, ADA claim, and claims for equitable relief are dismissed, with prejudice, for failure to state a claim against which relief may be granted;

3. Defendants Long, Weidman, Harper, and Does 1-3 are dismissed from this action based on Plaintiff's failure to state any claims upon which relief may be granted against them; and

4. This matter is referred back to the Magistrate Judge for service of process.

IT IS SO ORDERED.

20090525

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