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Robert Benyamini v. T. Forsthy

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 27, 2011

ROBERT BENYAMINI, PLAINTIFF,
v.
T. FORSTHY, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis. Plaintiff seeks relief pursuant to 42 U.S.C. § 1983. On April 29, 2010, the court dismissed plaintiff's complaint and ordered plaintiff to file an amended complaint to clarify his claims and the involvement of the named defendants. On July 20, 2010, the court issued findings and recommendations recommending that this action be dismissed due to plaintiff's failure to file an amended complaint. After plaintiff filed objections, the court granted plaintiff additional time to file his amended complaint, and subsequently granted him yet another extension of time to do so. Plaintiff finally filed his amended complaint in this action on September 30, 2010. Therefore, the court will vacate the findings and recommendations of July 20, 2010.

In his amended complaint, plaintiff includes several allegations without identifying the defendants that he is claiming were involved in the acts alleged. Plaintiff was previously warned by the court that there can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link between the defendant's alleged actions and the claimed constitutional deprivation. (Doc. No. 10 at 3.) Therefore, the court finds that plaintiff's amended complaint states a cognizable claim for relief pursuant to § 1983 and 28 U.S.C. § 1915A(b), with respect to plaintiff's claim that he was denied yard time. In this regard, plaintiff alleges that from July 20, 2005 to August 27, 2005, he was denied yard time by defendants T. Forsthy, M. Forsthy, Dizion, Kouizak, Cox, Sanbria, and O'Brian in violation of plaintiff's rights under the Eighth Amendment. If these allegations are proven, as to that claim plaintiff has a reasonable opportunity to prevail on the merits of the claim. If plaintiff wishes to proceed in this action on other claims raised in the amended complaint, he will be required to file a motion for leave to amend his amended complaint along with a proposed second amended complaint in which he alleges some affirmative link between the named defendants' actions and the claimed constitutional deprivation with respect to each of the claims he seeks to pursue herein.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations, filed on July 20, 2010, are vacated.

2. Service of the amended complaint is appropriate for the following defendants:

T. Forsthy, M. Forsthy, Dizion, Kouizak, Cox, Sanbria, and O'Brian.

3. The Clerk of the Court shall send plaintiff seven USM-285 forms, one summons, an instruction sheet, and a copy of the amended complaint filed September 30, 2010.

4. Within thirty days from the date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all of the following documents to the court at the same time:

a. The completed, signed Notice of Submission of Documents;

b. One completed summons;

c. One completed USM-285 form for each defendant listed in number 2 above; and

d. Eight copies of the endorsed amended complaint filed September 30, 2010.

5. Plaintiff shall not attempt to effect service of the complaint on defendants or request a waiver of service of summons from any defendant. Upon receipt of the above-described documents, the court will direct the United States Marshal to serve the above-named defendants pursuant to Federal Rule of Civil Procedure 4 without payment of costs.

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

ROBERT BENYAMINI, Plaintiff, v. T. FORSTHY, et al., NOTICE OF SUBMISSION Defendants.

No. CIV S-09-2323 FCD DAD P

OF DOCUMENTS

Plaintiff hereby submits the following documents in compliance with the court's order filed one completed summons form; [#] completed USM-285 forms; and [#] true and exact copies of the amended complaint filed September 30, 2010.

DATED: .

Plaintiff

20110427

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