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Robert Benyamini v. J. Martinez

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


April 15, 2013

ROBERT BENYAMINI, PLAINTIFF,
v.
J. MARTINEZ, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff is a former state prisoner proceeding without counsel or "pro se." Plaintiff seeks relief pursuant to 42 U.S.C. § 1983, and was granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 on February 1, 2013. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

Plaintiff's original complaint was dismissed, and plaintiff was granted leave to file a first amended complaint, which was filed on March 4, 2013. However, review of court records reveals that on at least three occasions lawsuits filed by the plaintiff have been dismissed on the grounds that they were frivolous or malicious or failed to state a claim upon which relief may be granted:

1. Benyamini v. Anderson, Case No. 1:07-cv-1596 OWW GSA -- dismissed for failure to state a claim on May 13, 2009.

2. Benyamini v. Simpson, Case No. 2:08-cv-1552 GEB DAD -- on June 8, 2009 findings and recommendations recommended that the action be dismissed for failure to state a claim; the findings and recommendations were adopted in full by order issued July 8, 2009.

3. Benyamini v. Johnson, Case No. 11-16971 (Ninth Circuit) -- on November 15, 2011, court found that plaintiff was not entitled to proceed in forma pauperis because appeal was frivolous.

4. Benyamini v. Byrd, Case No. 11-17218 (Ninth Circuit) -- on December 8, 2011, plaintiff was denied leave to proceed in forma pauperis because appeal was frivolous, and court found that plaintiff had three or more prior actions or appeals dismissed as frivolous or for failure to state a claim.

Plaintiff is therefore precluded from proceeding in forma pauperis in this action unless plaintiff is "under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Plaintiff has not alleged any facts which suggest that he is under imminent danger of serious physical injury. Indeed, plaintiff is no longer in state custody. Thus, plaintiff must submit the appropriate filing fee in order to proceed with this action.

In accordance with the above, IT IS HEREBY ORDERED that

1. Plaintiff's in forma pauperis status is revoked; and

2. Plaintiff shall submit, within twenty-one days from the date of this order, the appropriate filing fee. Plaintiff's failure to comply with this order will result in a recommendation that this action be dismissed.

20130415

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