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Robert Benyamini v. T. Forsthy

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


April 16, 2012

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

ORDER AND FINDINGS AND RECOMMENDATIONS

Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. Before the court are plaintiff's motion for leave to file a second amended complaint and two motions to stay the proceeding.

Before the court considers the pending motions, the court will first address plaintiff's repeated failures to comply with the court's orders. On April 28, 2011, the court ordered plaintiff to file the USM-285 forms to effect service on seven defendants. Instead, plaintiff filed multiple motions for stays, motions for leave to file a second amended complaint, and interlocutory appeals. On three occasions when the court ruled on plaintiff's multiple motions, the court provided plaintiff with the forms for effecting service on the defendants and a copy of his amended complaint. See Docs. No. 23, 30, and 40. In addition, plaintiff has repeatedly been warned that he is required to comply with the court's orders and submit the required documents as directed. On June 8, 2011, the court issued findings and recommendations recommending that this action be dismissed due to plaintiff's failure to submit the required USM-285 forms as directed. On July 18, 2011, the court vacated those findings and recommendations with the following warning to plaintiff:

[T]he court will vacate the findings and recommendations and provide plaintiff additional time to submit the USM-285 forms which the court has previously ordered be submitted by plaintiff. Plaintiff is cautioned that the court expects plaintiff to proceed diligently and in a timely manner. This action was initiated in 2009 and further delays in moving forward with this action are unacceptable. If plaintiff fails to comply with the court's order to submit the required documents for service on defendants, the court will recommend the dismissal of this action due to plaintiff's failure to prosecute the action and comply with the court's orders.

(Doc. No. 30 at 2.)

Nonetheless, rather than submit the required USM-285 forms as directed, plaintiff filed two motions seeking an extension of time, a motion for a stay and motion for leave to file a second amended complaint. See Docs. No. 32, 35, 37 and 38. The court provided plaintiff yet another opportunity to comply with the court's order. See Doc. No. 40. Nonetheless, plaintiff has responded by filing the motions now pending before the court. In light of the lengthy history of this case, the numerous opportunities provided to plaintiff to file the required USM-285 forms required for service of the summons and complaint and the court's multiple warnings to plaintiff that he must comply with the court's order, the court will recommend that this action be dismissed without prejudice due to plaintiff's failure to prosecute this action and to comply with the court's orders.

For these same reasons, the court will deny plaintiff's motion for leave to file a second amended complaint*fn1 and his motions for a stay of these proceedings.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motions for a stay of the proceedings filed on October 6, 2011 and October 12, 2011 (Docs. No. 46 and 48) are denied; and

2. Plaintiff's September 6, 2011 motion for leave to file a second amended complaint (Doc. No. 43) is denied.

Also, IT IS HEREBY RECOMMENDED that this action be dismissed due to plaintiff's repeated failure to complete and submit the USM-285 forms and copies of his amended complaint in order to effect service on the defendants pursuant to the court's orders of April 28, 2011, July 18, 2011and August 23, 2011. See Fed. R. Civ. P. 41(b).

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, plaintiff may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Plaintiff is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).


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