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Sanders v. Fictgler

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


September 2, 2010

PHILLIP SANDERS, PLAINTIFF,
v.
DA TRACE FICTGLER, DA KAY KRATT, DA LET SMITH, DA MARTIN JIMMIEZE, MARIE TABACCHI, DEFENDANTS.

The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

ORDER VACATING HEARING SCHEDULED FOR SEPTEMBER 20, 2010 COURT PROBATION, FRESNO COUNTY DISTRICT ATTORNEYS OFFICE AND COUNTY OF FRESNO, (Doc. 12)

Plaintiff, Phillip Sanders, ("Plaintiff") is appearing pro se and proceeding in forma pauperis. He filed this civil rights action on April 9, 2010 pursuant to 42 U.S.C. §1983 based on violations of the Eighth, and Fourteenth Amendments of the United States Constitution. Plaintiff names District Attorney Trace Fictgler, District Attorney Kay Kratt, District Attorney, Let Smith, District Attorney Martin Jimmieze,*fn1 Marie Tabacchi, Court Probation, the Fresno County District Attorney's Office, and the County of Fresno as Defendants.

Plaintiff served the complaint on Defendants on June 6, 2010 via mail. On July 1, 2010, Defendants Fictgler, Jimmieze, Tabacchi, the Fresno County District Attorney's Office and the County of Fresno ("Defendants") filed a Motion to Dismiss the Complaint. (Doc. 12). Plaintiff has filed an opposition. (Doc. 15). The case is set for hearing on September 20, 2010 at 10:00 am before the undersigned. (Doc. 14).

Pursuant to 28 U.S.C. § 1915(e)(2), the court must conduct an initial review of the complaint for sufficiency to state a claim. The court must dismiss a complaint or portion thereof if the court determines that the action is legally "frivolous or malicious," fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the court determines that the complaint fails to state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint can be cured by amendment.

In this case, Plaintiff served the complaint before the court screened the pleading. Therefore, Defendants' Motion to Dismiss is DENIED WITHOUT PREJUDICE so that the court may complete the screening process. Accordingly, the hearing on Defendants' Motion to Dismiss set for September 20, 2010 at 10:00 am before the undersigned is hereby VACATED.

IT IS SO ORDERED.


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