UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
September 13, 2010
PHILLIP FRANCIS GRAZIDE, PETITIONER,
CITY OF FRESNO, ET AL., RESPONDENTS.
The opinion of the court was delivered by: Michael J. Seng United States Magistrate Judge
ORDER DENYING RESPONDENT'S MOTION TO DISMISS WITHOUT PREJUDICE
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On September 8, 2010, Respondent, City of Fresno, filed a motion to dismiss under Federal Rule of Civil Procedure 12b(1) and (6), and requested a hearing regarding the motion on November 22, 2010. (Mot. to Dismiss, ECF No. 25.)
Respondent's motion to dismiss is premature. Under Rules 4 and 5 of the Rules Governing Section 2254 Cases, the court preliminary reviews the petition. If it plainly appears from the petition that the petitioner is not entitled to relief... the judge must dismiss the petition. If not, the judge must order the respondent to file an answer, motion, or other response and serve a copy of the petition on the respondent. Rule 4, Rules Governing Section 2254 Cases. In the present case, the court is in the process of preliminarily reviewing the petition, and has not ordered respondent to respond to the petition. Should the judge not dismiss the petition, he shall order the respondent to respond. At that time, respondent may file an appropriate response with the court.
Based on the foregoing, it is HEREBY ORDERED that:
1. The motion to dismiss [Doc. 25] is DENIED without prejudice; and
2. The clerk of the court shall take the hearing regarding the motion to dismiss off-calendar.
IT IS SO ORDERED.
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