Perez v. On Habeas Corpus

Filing 12

ORDER VACATING Order and Judgment of Dismissal of the Petition (Docs. 10 , 11 ) and ORDER DIRECTING PETITIONER to File a Motion to Amend the Petition to Name a Proper Respondent Within Thirty (30) Days, signed by Magistrate Judge Sheila K. Oberto on 3/1/2013. CASE REOPENED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARK LEON PEREZ,

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Petitioner,

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v.
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ON HABEAS CORPUS,
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Respondent.
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1:12-cv—01920-SKO-HC
ORDER VACATING ORDER AND JUDGMENT
OF DISMISSAL OF THE PETITION
(DOCS. 10, 11)
ORDER DIRECTING PETITIONER TO
FILE A MOTION TO AMEND THE
PETITION TO NAME A PROPER
RESPONDENT NO LATER THAN THIRTY
(30) DAYS AFTER SERVICE OF THIS
ORDER OR SUFFER DISMISSAL OF THE
ACTION (DOCS. 5, 7)

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Petitioner is a state prisoner who has proceeded pro se and
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in forma pauperis with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.1

Pursuant to 28 U.S.C.

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§ 636(c)(1), Petitioner consented to the jurisdiction of the
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United States Magistrate Judge to conduct all further proceedings
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in the case, including the entry of final judgment, by
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Although Petitioner has submitted his petition on a form for prisoners
proceeding pursuant to 28 U.S.C. § 2241, the Court notes that Petitioner is
serving a sentence imposed by a state court. Thus, the Court understands
Petitioner to be proceeding pursuant to § 2254.

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manifesting consent in a signed writing filed by Petitioner on

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December 12, 2012 (doc. 6).

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Petitioner filed the petition on November 27, 2012.

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December 7, 2012, the Court issued an initial screening order

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with respect to the petition in which the Court noted that

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Petitioner had not named a proper respondent and granted

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Petitioner leave to file a motion to amend the petition and name

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a proper respondent no later than thirty (30) days after the date

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of service of the order.

On

The order warned Petitioner that a

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failure to move to amend the petition and state a proper

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respondent would result in a recommendation that the petition be

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dismissed for lack of jurisdiction.

The order was served by mail

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on Petitioner on December 7, 2012.

However, Petitioner failed to

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file a motion to amend the petition.

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On January 24, 2013, the Court issued an order to Petitioner

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to show cause within twenty-one days why the petition should not

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be dismissed for failure to follow a court order.

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served on Petitioner by mail on the same date.

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2013, Petitioner responded to the order.

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the Court signed an order dismissing the petition for

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Petitioner’s failure to comply with the Court’s previous orders.

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The order was docketed on February 28, 2013.

Petitioner’s

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response to the order to show cause was late.

However, it

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appears that Petitioner’s response and the order of dismissal

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crossed because the dismissal was for Petitioner’s failure to

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respond, whereas Petitioner had actually responded.

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The order was

On February 25,

On February 27, 2013,

Pursuant to Fed. R. Civ. P. 60(a), a court may correct a
clerical mistake or a mistake arising from oversight or omission
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whenever one is found in a judgment, order, or other part of the

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record, either on its own motion or on the motion of a party,

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with or without notice.

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docketed in the appellate court and while it is pending, such a

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mistake may be corrected only with the appellate court’s leave.

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However, after an appeal has been

Here, no appeal has been filed.

Accordingly, on the Court’s

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own motion, the Court will vacate the order and the judgment of

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dismissal of the petition.

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However, Petitioner remains in disobedience of the Court’s

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order of December 7, 2012, in which the Court noted the absence

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of a proper respondent from Petitioner’s petition and directed

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Petitioner to file a request to amend the petition to name a

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proper respondent, such as the warden in charge of his custodial

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institution, or the Secretary of the California Department of

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Corrections and Rehabilitation (CDCR).

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Gomez, 81 F.3d 891, 894-96 (9th Cir. 1996); Cal. Pen. Code

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§ 5050.

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result in sanctions, including dismissal, pursuant to the

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inherent power of the Court or the Federal Rules of Civil

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Procedure.

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v. NASCO, Inc., 501 U.S. 31, 42-43 (1991).

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See, Ortiz-Sandoval v.

A failure to comply with an order of the Court may

Fed. R. Civ. P. 41(b), 11; Local Rule 110; Chambers

Petitioner stated in his response to the order to show cause

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that he had been subject to an institutional lock down, lacked

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access to a law library, and was transferred to another custodial

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institution.

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Petitioner has not performed the simple act of submitting a

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request to amend the petition to name a proper respondent.

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Therefore, Petitioner has failed to comply with a court order,

However, those circumstances do not explain why

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and the Court is unable to screen the petition further or to

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proceed to ready the case for disposition on the merits.

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Petitioner will be given one more opportunity to file a

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motion to amend the petition.

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this order in a timely fashion, the petition will be dismissed

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without further notice for failure to comply with a court order

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and failure to prosecute.

If Petitioner fails to comply with

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Accordingly, it is ORDERED that:

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1)

The order and judgment of dismissal of the petition,

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filed on February 28, 2013, are VACATED for clerical mistake and

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oversight; and

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2)

Petitioner is ORDERED to file no later than thirty (30)

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days after the date of this order a motion to amend the petition

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to name a proper respondent; and

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Petitioner is INFORMED that a failure to comply with

this order will result in dismissal of the action.

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IT IS SO ORDERED.

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Dated:
ie14hj

March 1, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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