Brodheim v. Dickinson, et. al.

Filing 104

ORDER signed by Magistrate Judge Gregory G. Hollows on 1/28/2013 ORDERING that petitioner's 102 request to vacate motions and scheduling dates will be heard on 2/28/2013 at 10:00 AM in Courtroom 9 (GGH) before Magistrate Judge Gregory G. Hol lows; the 2/28/2013 hearing on respondent's 79 motion to dismiss is VACATED from the calendar, to be rescheduled if necessary, following a decision on petitioner's request; opposition and reply dates for the 79 motion to dismiss will be rescheduled at a later time. (Yin, K)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL J. BRODHEIM,

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Petitioner,

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No. CIV S-06-2326 LKK GGH P

vs.
KATHLEEN DICKINSON, et al.,

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Respondents.

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ORDER
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Presently before the court is petitioner’s request to vacate motions and scheduling

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dates, filed January 24, 2013, as well as respondent’s opposition, filed January 25, 2013.

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Petitioner seeks an order vacating all motions and scheduled dates, including respondent’s

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motion to dismiss, currently scheduled for hearing on February 28, 2013, as well as an order

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requiring a joint status report be filed by June 14, 2013. Petitioner brings this request based on

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the Board of Parole Hearings’ January 8, 2013 decision to grant petitioner parole, which will not

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be final for several months.1 Petitioner reminds the court that approximately one year ago the

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court granted a similar request that was stipulated by the parties, based on a January 11, 2012

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decision by the Board of Parole Hearings which granted petitioner parole.

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Petitioner’s opposition to the motion to dismiss was due January 24, 2013. (Dkt. no.

101.)
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Respondent opposes the request, noting the history of the appeal in this case and

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the Ninth Circuit’s remand after Swarthout v. Cooke, 131 S.Ct. 859 (2011). Respondent

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contends, inter alia, that most of petitioner’s contentions are now foreclosed by Cooke, that his

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claims are not cognizable in habeas, because his claims should be resolved in the pending class

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action, Gilman v. Brown, no. 2:05-cv-8830 LKK GGH, and because all of his claims have been

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mooted by subsequent parole consideration hearings he has received. Respondent requests that

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its motion to dismiss, filed September 26, 2011, should be heard as scheduled so that this case

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can finally be closed. Petitioner’s request will not be decided without a hearing.

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Accordingly, IT IS ORDERED that:

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1. Petitioner’s request to vacate motions and scheduling dates, filed January 24,
2013, will be heard on February 28, 2013 at 10:00 a.m.

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2. Hearing on respondent’s motion to dismiss is vacated from the calendar for

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February 28, 2013, to be rescheduled, if necessary, following a decision on petitioner’s request.

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3. Opposition and reply dates for the motion to dismiss will be rescheduled at a

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later time.

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DATED: January 28, 2013

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:076/brod2326.mtn.wpd

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