Thatcher v. Unknown

Filing 4

ORDER to SHOW CAUSE why 1 Petition should not be dismissed for lack of jurisdiction signed by Judge Dennis L. Beck on 5/23/07. Show Cause Response due by 6/26/2007.(Lundstrom, T)

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(HC) Thatcher v. Unknown Doc. 4 Case 1:07-cv-00725-AWI-DLB Document 4 Filed 05/24/2007 Page 1 of 2 1 2 3 4 5 6 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 12 UNKNOWN, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 Petitioner filed the instant petition on May 16, 2007. The Court has conducted a 18 preliminary review of the Petition and finds it is without jurisdiction to hear the case as Petitioner 19 has named an improper respondent. It does appear from the Petition that Petitioner is confined at 20 High Desert State Prison in Susanville he has failed to name the warden Tom Felker or any other 21 person as the Respondent. Petitioner may remedy this failure by amending his Petition to include 22 a Respondent. 23 A petitioner seeking habeas corpus relief under 28 U.S.C. 2254 must name the state 24 officer having custody of him as the respondent to the petition. Rule 2 (a) of the Rules 25 Governing 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. 26 California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having 27 custody of an incarcerated petitioner is the warden of the prison in which the petitioner is 28 1 Dockets.Justia.com UNITED STATES DISTRICT COURT DAVID CHARLES THATCHER, Petitioner, v. 1: 07 CV 00725 AWI DLB HC ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED FOR LACK OF JURISDICTION / Case 1:07-cv-00725-AWI-DLB Document 4 Filed 05/24/2007 Page 2 of 2 1 2 3 4 5 6 7 incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see, also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or parole officer and the official in charge of the parole or probation agency or state correctional agency. Id. In this case, Petitioner has failed to name a Respondent. Petitioner's failure to name a 8 proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 9 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326 (9th Cir. 1970); see, also, 10 Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976). However, in this case, 11 the Court will give petitioner the opportunity to cure his defect by amending the petition to name a 12 proper respondent. See, West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973), vacated in part 13 on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend petition to 14 name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). 15 16 17 18 19 20 21 22 23 24 25 26 3b142a 27 28 2 Accordingly, the Court HEREBY ORDERS: 1. Petitioner SHALL SHOW CAUSE why the Petition should not be dismissed by AMENDING the Petition to name a proper respondent within thirty (30) days of the date of service of this order. To comply with this directive petitioner need only submit a pleading titled "Amendment to Petition" in which he amends the petition to name a proper respondent. As noted above, that individual is the person having day to day custody over petitioner - usually the warden of the institution where he is confined. The Amendment should be clearly and boldly captioned as such and include the case number referenced above, and be an original signed under penalty of perjury. IT IS SO ORDERED. Dated: May 23, 2007 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE

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