Laws v. California Department of Corrections

Filing 7

ORDER Requiring Petitioner to Submit Motion to Name Proper Respondent signed by Magistrate Judge Jennifer L. Thurston on 10/09/2013. Motion due by 11/12/2013. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ANTHONY LAWS,
Petitioner,

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v.
CALIFORNIA DEPARTMENT OF
CORRECTIONS,
Respondent.

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Case No.: 1:13-cv-01547-JLT
ORDER REQUIRING PETITIONER TO SUBMIT
MOTION TO NAME PROPER RESPONDENT
THIRTY DAY DEADLINE

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner filed the instant petition on September 25, 2013. (Doc. 1).
DISCUSSION
A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer

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having custody of him as the respondent to the petition. Rule 2 (a) of the Rules Governing § 2254

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Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme

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Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person having custody of an incarcerated

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petitioner is the warden of the prison in which the petitioner is incarcerated because the warden has

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"day-to-day control over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

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1992); see also, Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). However, the

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chief officer in charge of state penal institutions is also appropriate. Ortiz, 81 F.3d at 894; Stanley, 21
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F.3d at 360. Where a petitioner is on probation or parole, the proper respondent is his probation or

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parole officer and the official in charge of the parole or probation agency or state correctional agency.

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Id.
Here, Petitioner has named as Respondent the California Department of Corrections.

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However, the California Department of Corrections is not the warden or chief officer of the institution

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where Petitioner is confined and, thus, does not have day-to-day control over Petitioner. Petitioner is

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presently confined at the California State Prison, Solano, located in Vacaville, California. The current

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director or warden of that facility, Gary Swarthout, is the person Petitioner should name as

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Respondent.

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Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition for

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lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 1326

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(9th Cir. 1970); see also, Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd Cir. 1976).

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However, the Court will give Petitioner the opportunity to cure this defect by amending the

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petition to name a proper respondent. See West v. Louisiana, 478 F.2d 1026, 1029 (5th Cir.1973),

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vacated in part on other grounds, 510 F.2d 363 (5th Cir.1975) (en banc) (allowing petitioner to amend

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petition to name proper respondent); Ashley v. State of Washington, 394 F.2d 125 (9th Cir. 1968)

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(same). In any amended petition, Petitioner must name a proper respondent.

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In the interests of judicial economy, Petitioner need not file an amended petition. Instead,

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Petitioner can satisfy this deficiency in his petition by filing a motion entitled "Motion to Amend

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the Petition to Name a Proper Respondent" wherein Petitioner may name the proper

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respondent in this action.
Accordingly, it is HEREBY ORDERED that, within thirty days of the date of service of this

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order, Petitioner must file with the Court a “Motion To Amend The Petition To Name A Proper

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Respondent,” wherein Petitioner must name the warden of his present prison facility as the respondent.

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Petitioner is forewarned that his failure to comply with this Order may result in an Order of
Dismissal or a Recommendation that the petition be dismissed pursuant to Local Rule 110.

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IT IS SO ORDERED.
Dated:

October 9, 2013

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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