Fernando Serna v. Board of Prison Hearings

Filing 7

ORDER GRANTING 6 Petitioner's Motion to Amend the Petition and Change Name of Respondent, signed by Magistrate Judge Gary S. Austin on 8/30/2010. Kathy Allison added. Board of Prison Hearings terminated. (Jessen, A)

(HC) Fernando Serna v. Allison

Doc. 7

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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia

UNITED STATES DISTRICT COURT

FERNANDO SERNA,

) ) Petitioner, ) ) v. ) ) KATHY ALLISON, Warden, ) ) Respondent. ) ____________________________________)

1:10-CV-01252 GSA HC ORDER GRANTING PETITIONER'S MOTION TO AMEND PETITION AND CHANGE NAME OF RESPONDENT [Doc. #6] ORDER DIRECTING CLERK OF COURT TO CHANGE NAME OF RESPONDENT

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 16, 2010, the Court granted Petitioner leave to file a motion to amend the petition to name a proper respondent. On August 25, 2010, Petitioner filed a motion to amend the petition. Petitioner requests that Kathy Allison, Warden of Corcoran State Prison Substance Abuse Treatment Facility be named as Respondent in this matter. A petitioner seeking habeas relief must name the state officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing Section 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.1994). Normally, the person having custody of the prisoner is the warden of the prison because the warden has "day to day control over" the prisoner. Brittingham v. United States, 982. F.2d 378, 279 (9th Cir.1992). Therefore, Petitioner's request is proper. 1
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U . S . D is t r ic t C o u r t E. D . C a lifo r n ia

Accordingly, Petitioner's motion for leave to amend the petition to name Kathy Allison as Respondent in this matter is GRANTED. The Clerk of Court is DIRECTED to change the name of Respondent to Kathy Allison.

IT IS SO ORDERED. Dated:

August 30, 2010

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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