-DAD (PC) Benyamini v. Forsthy et al, No. 2:2009cv02323 - Document 30 (E.D. Cal. 2011)

Court Description: ORDER signed by Magistrate Judge Dale A. Drozd on 7/15/2011 vacating 26 FINDINGS AND RECOMMENDATIONS; denying 27 Motion to Stay; Clerk is directed to send plaintiff 7 USM-285 forms, summons, instruction sheet, and copy of the 22 amended complai nt; within 30 days from date of this order, plaintiff shall complete the attached Notice of Submission of Documents and submit all documents to the court for service by USM; plaintiff's failure to comply with this order will result in the dismissal of this action. (Waggoner, D)

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-DAD (PC) Benyamini v. Forsthy et al Doc. 30 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT BENYAMINI, 11 12 13 14 15 16 Plaintiff, No. CIV S-09-2323 FCD DAD P vs. T. FORSTHY, et al., Defendants. ORDER / Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 17 42 U.S.C. § 1983. On April 28, 2011, the court issued an order informing plaintiff that his 18 amended complaint stated a cognizable Eighth Amendment claim concerning his allegation that 19 he had been denied yard time at his institution of confinement. Plaintiff was ordered to submit 20 documents for service on defendants T. Forsthy, M. Forsthy, Dizion, Kouizak, Cox, Sanbria and 21 O’Brian. On June 8, 2011, the court filed findings and recommendations recommending that this 22 action be dismissed due to plaintiff’s failure to submit the USM-285 forms for service on these 23 defendants. Before the court are plaintiff’s motion to stay the proceedings and his objections to 24 the court’s findings and recommendations. 25 26 In his first motion, plaintiff requests a stay for at least six months due to the difficulties he has experienced including an alleged beating at the hands of a correctional officer, 1 Dockets.Justia.com 1 missing documents from his legal property, limited prison law library time, and physical 2 disabilities. Plaintiff’s allegations in this regard are vague and conclusory. Moreover, he 3 provides no legal authority or explanation to support his request for such a lengthy stay of this 4 civil action. Nevertheless, the court will vacate the findings and recommendations and provide 5 plaintiff additional time to submit the USM-285 forms which the court has previously ordered be 6 submitted by plaintiff. Plaintiff is cautioned that the court expects plaintiff to proceed diligently 7 and in a timely manner. This action was initiated in 2009 and further delays in moving forward 8 with this action are unacceptable. If plaintiff fails to comply with the court’s order to submit the 9 required documents for service on defendants, the court will recommend the dismissal of this 10 action due to plaintiff’s failure to prosecute the action and comply with the court’s orders. 11 Accordingly, IT IS HEREBY ORDERED that: 12 1. The findings and recommendations filed on June 8, 2011 (Doc. No. 26) are 13 vacated; 14 2. Plaintiff’s June 9, 2011 motion for a stay (Doc. No. 27) is denied; and 15 3. The Clerk of the Court is directed to send plaintiff seven USM-285 forms, one 16 summons, an instruction sheet, and a copy of the amended complaint filed September 30, 2010. 17 4. Within thirty days from the date of this order, plaintiff shall complete the 18 attached Notice of Submission of Documents and submit all of the following documents to the 19 court at the same time: 20 a. The completed, signed Notice of Submission of Documents; 21 b. One completed summons; 22 c. One completed USM-285 form for each defendant; and 23 d. Eight copies of the endorsed amended complaint filed September 30, 24 2010. 25 ///// 26 ///// 2 1 5. Plaintiff failure to comply with this order will result in the dismissal of this 2 action. 3 DATED: July 15, 2011. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 DAD:4 ben2323.vac 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT BENYAMINI, 11 Plaintiff, 12 13 No. CIV S-09-2323 FCD DAD P vs. T. FORSTHY, et al., 14 NOTICE OF SUBMISSION Defendants. OF DOCUMENTS 15 / 16 17 Plaintiff hereby submits the following documents in compliance with the court’s order filed : 18 one completed summons form; 19 [#] completed USM-285 forms; and 20 [#] true and exact copies of the amended complaint filed September 30, 21 2010. 22 23 DATED: . 24 25 Plaintiff 26

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