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Benyamini v. Blackburn

United States District Court, E.D. California

March 22, 2017

ROBERT BENYAMINI, Plaintiff,
v.
M. BLACKBURN, et al., Defendants.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Plaintiff is a former state prisoner proceeding pro se with a civil rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on plaintiff's complaint (ECF No. 1), which was found to state claims against defendants for use of excessive force in violation of the Eighth Amendment (ECF No. 8). Currently before the court is defendants' motion for an order declaring plaintiff a vexatious litigant and requiring security in the amount of no less than $3, 270. ECF No. 88. Plaintiff opposes the motion. ECF No. 101. For the reasons set forth below, the court will recommend that defendants' motion be denied.

         I. Procedural History

         Plaintiff initiated this action on February 4, 2013, and is proceeding on a complaint that was found to state Eighth Amendment claims against defendants Blackburn and Marzan, correctional staff at California State Prison-Sacramento (“CSP-Sac”).[1] Specifically, plaintiff alleges that on April 29, 2009, while plaintiff was being transferred to a new cell block, defendant Marzan wrapped his arm around plaintiff's throat and began squeezing, which cut off plaintiff's air supply and caused plaintiff to believe he was going to die. ECF No. 1 at 10. Plaintiff asserts that defendant Marzan also whispered in his ear “your [sic] going into the block, it'll kill you.” Id. Plaintiff claims that defendant Blackburn subsequently “man handled” him into the cell and used retention chains attached to his handcuffs to rip plaintiff's hands through the food tray port. Id. Plaintiff states that he had severe bruising on his wrists, forearms, and biceps as a result of defendant Blackburn's conduct, and that he suffered from nightmares as a result of the strangulation. Id.

         On March 30, 2016, defendants filed the instant motion. ECF No. 88. After obtaining two extensions of time to file an opposition (ECF Nos. 93, 97), plaintiff filed an opposition to defendants' motion (ECF No. 101). Defendants filed a reply. ECF No. 102. The motion is now fully briefed and before the court.

         II. Defendants' Request for Judicial Notice

         Defendants ask the court to take judicial notice of twenty-three instances of prior litigation brought by plaintiff. ECF No. 89. The court “may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.” United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (citation and internal quotation marks omitted) (collecting cases); Fed.R.Evid. 201(b)(2) (court may take judicial notice of facts that are capable of accurate determination by sources whose accuracy cannot reasonably be questioned). Accordingly, the request will be granted and the court takes judicial notice of the following instances of litigation initiated by plaintiff:

         1. Benyamini v. Johnson, Ninth Circuit Case No. 11-16971 (appeal from E.D. Cal. Case No. 1:07-cv-0907-LJO-DLB). On December 5, 2011, the Ninth Circuit dismissed the appeal for failure to prosecute after plaintiff failed to pay the filing fee, which he had been ordered to pay because his appeal was found to be “frivolous.” ECF No. 89 at 7-9.

         2. Benyamini v. Johnson, E.D. Cal. Case No. 1:07-cv-0907-LJO-DLB. Plaintiff was found to state a cognizable claim against multiple defendants, but the action was ultimately dismissed on July 27, 2010, for plaintiff's failure to timely submit service documents. Id. at 23-26.

         3. Benyamini v. Simpson, E.D. Cal. Case No. 2:08-cv-1552-GEB-DAD. Case dismissed on July 8, 2009, for failure to state a claim. Id. at 35-41.

         4. Benyamini v. Anderson, E.D. Cal. Case No. 1:07-cv-1596-OWW-GSA. Plaintiff's complaint was dismissed with leave to amend for failure to state a claim. When plaintiff failed to file an amended pleading, the case was dismissed on May 13, 2009, on the ground that the only pleading on file failed to state a claim. Id. at 48-52, 56-57.

         5. Benyamini v. Manjuano, E.D. Cal. Case No. 1:06-cv-1096-AWI-GSA. Plaintiff was found to state an Eighth Amendment claim against multiple Defendants. On March 4, 2015, judgment was entered for defendants following grant of their motion for summary judgment. Id. at 89-103.

         6. Benyamini v. Manjuano, E.D. Cal. Case No. 1:07-cv-1697-AWI-GSA. The case was dismissed on October 7, 2008, as duplicative of 1:06-cv-1096-AWI-GSA. Id. at 105.

         7. Benyamini v. Rivers, E.D. Cal. Case No. 2:09-cv-0075-JAM-KJM. Plaintiff's complaint was dismissed with leave to amend for failure to state a claim. On November 25, 2009, the case was dismissed without prejudice at plaintiff's request. Id. at 111-18.

         8. Benyamini v. Kretch, E.D. Cal. Case No. 2:09-cv-0170-GEB-DAD. Plaintiff's complaint was dismissed with leave to amend for failure to state a claim. On August 25, 2009, the case was dismissed for plaintiff's failure to file an amended complaint. Id. at 123-28, 131-37.

         9. Benyamini v. Sharp, E.D. Cal. Case No. 2:09-cv-0173-FCD-EFB. Plaintiff's complaint was found to state a claim against one defendant. Plaintiff was granted leave to file an amended pleading or to submit service documents. After failing to submit either the materials necessary to serve process or an amended complaint, the case was dismissed for failure to prosecute on March 15, 2010. Id. at 146-50 10. Benyamini v. Harris, E.D. Cal. Case No. 2:09-cv-2462-MCE-DAD. Plaintiff's complaint was found to state a claim against multiple defendants. On September 30, 2010, the case was dismissed for plaintiff's failure to submit service documents. Id. at 157-60.

         11. Benyamini v. Forsthy, E.D. Cal. Case No. 2:09-cv-2323-GEB-DAD. Plaintiff's complaint was found to state a claim, but the case was dismissed on June 1, 2012, for failure to submit documents necessary to effect service. Id. at 172-76.

         12. Benyamini v. Forsthy, Ninth Circuit Case No. 12-16402 (appeal from E.D. Cal. Case No. 2:09-cv-2323-GEB-DAD). The Ninth Circuit summarily affirmed the district court's judgment after finding that the questions raised were “so insubstantial as not to require further argument.” Id. at 181.

         13. Benyamini v. Byrd, Ninth Circuit Case No. 11-17218 (appeal from E.D. Cal. Case No. 2:10-cv-0101-KJM-DAD). Plaintiff's application to proceed in forma pauperis was denied because the appeal was found to be frivolous. The appeal was subsequently dismissed for plaintiff's failure to pay the filing fee. Id. at 184-86.

         14. Benyamini v. Forsythe, E.D. Cal. Case No. 2:09-cv-2453-GEB-EFB. Plaintiff's complaint was found to state a claim against multiple defendants. Plaintiff was granted leave to either file an amended complaint or return documents necessary to effect service. When plaintiff did neither, the case was dismissed on July 13, 2011, for failure to prosecute. Id. at 222-25.

         15. Benyamini v. Forsythe, Ninth Circuit Case No. 11-16838 (appeal from E.D. Cal. Case No. 2:09-cv-2453-FCD-EFB). The Ninth Circuit reviewed and affirmed the district court's dismissal of the action. Id. at 227-28.

         16. Benyamini v. Colvin, E.D. Cal. Case No. 2:12-cv-03160-JAM-EFB. Plaintiff's complaint was found to state a claim against one defendant. Plaintiff was granted leave to either file an amended complaint or return documents necessary to effect service. When plaintiff did neither, the ...


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