(PC) Benyamini v. Sharp et al, No. 2:2009cv00173 - Document 21 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/9/2010 RECOMMENDING that pltf's 6 , 7 , 20 motions for preliminary injunction be denied; and this action be dismissed w/out prejudice. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 14 days.(Yin, K)

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(PC) Benyamini v. Sharp et al Doc. 21 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT P. BENYAMINI, Plaintiff, 11 12 vs. 13 No. CIV S-09-0173 FCD EFB P M. SHARP, et al., 14 Defendants. / 15 16 FINDINGS AND RECOMMENDATIONS Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. On June 9, 2009, the court found that the complaint stated a cognizable claim 18 against defendant Wolf but not as to any other defendant. The court gave plaintiff 20 days to 19 submit materials for service of process on defendant Wolf, or, alternatively, 30 days to file an 20 amended complaint to attempt to state cognizable claims against the additional defendants. The 21 times for acting passed and plaintiff did not submit the materials necessary to serve process, nor 22 did he file an amended complaint. 23 However, petitioner did file a request for counsel and a request to dismiss all defendants 24 except for defendant Martinez. The court addressed those filings by order dated December 17, 25 2009. The court also directed plaintiff to, within 21 days, “file a notice of dismissal pursuant to 26 Fed. R. Civ. P. 41(a)(1)(A)(I), or [] comply with the June 9, 2009 order.” Dckt. No. 19 at 3. The 1 Dockets.Justia.com 1 court warned plaintiff that failure to comply with the order “will result in a recommendation that 2 this action be dismissed pursuant to Fed. R. Civ. P. 41(b).” Id. Once again, the times for acting 3 have passed, and plaintiff has not complied with or otherwise responded to the court’s order. 4 On December 23, 2009, however, plaintiff requested that the court grant a preliminary 5 injunction that would require correctional officers to take polygraph examinations. Dckt. No. 6 20; see also Dckt. No. 6, 7. Because of plaintiff’s failure to respond to the court’s orders, 7 however, the court has not been able to order service upon defendant Wolf or any other 8 defendant in this action. “A federal court may issue an injunction if it has personal jurisdiction 9 over the parties and subject matter jurisdiction over the claim; it may not attempt to determine 10 the rights of persons not before the court.” Zepeda v. United States Immigration Service, 753 11 F.2d 719, 727 (9th Cir. 1985). Putting aside the merits of plaintiff’s motions for a preliminary 12 injunction, the court recommends that they be denied because no defendant has appeared in this 13 action and the court cannot issue an order against individuals who are not parties or are not 14 acting in concert with parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine 15 Research, Inc., 395 U.S. 100, 112 (1969). 16 Accordingly, IT IS HEREBY RECOMMENDED that: 17 1. Plaintiff’s motions for a preliminary injunction, Dckt. Nos. 6, 7, 20, be denied; and 18 2. This action be dismissed without prejudice. See Fed. R. Civ. P. 41(b). 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 24 //// 25 //// 26 //// 2 1 within the specified time may waive the right to appeal the District Court’s order. Turner v. 2 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: February 9, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 3

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