Nixon v. Sherman

Filing 16

ORDER Granting Petitioner's 15 Motion to Amend to Name a Proper Respondent; ORDER Directing Clerk of Court to Change Name of Respondent signed by Magistrate Judge Stanley A. Boone on 06/09/2014. (Flores, E)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
EASTERN DISTRICT OF CALIFORNIA
10
11

JOHNNY N. NIXON,

12
13

Case No. 1:14-cv-00525-SAB-HC

Petitioner,

ORDER GRANTING PETITIONER’S
MOTION TO AMEND TO NAME A
PROPER RESPONDENT

v.

14

STU SHERMAN, Warden,

15

Respondent.

ORDER DIRECTING CLERK OF COURT
TO CHANGE NAME OF RESPONDENT

16
17

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

18 pursuant to 28 U.S.C. § 2254. He has consented to the jurisdiction of the Magistrate Judge
19 pursuant to 28 U.S.C. § 636(c).
20

On May 22, 2014, after conducting a preliminary review of the petition, the Court

21 granted Petitioner leave to amend the petition to name a proper respondent. On June 6, 2014,
22 Petitioner filed a motion to amend the petition to name Stu Sherman, who is the Warden at his
23 institution, as Respondent. A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254
24 must name the state officer having custody of him as the respondent to the petition. Rule 2 (a) of
25 the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996);
26 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person
27 having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is
28 incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v.

1

1 United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. Accordingly,
2 Petitioner has named the appropriate respondent and his motion will be granted.
ORDER

3
4

Accordingly, IT IS HEREBY ORDERED:

5

1) Petitioner’s motion to amend the petition to name a proper respondent is GRANTED;

6 and
7

2) The Clerk of Court is DIRECTED to change the name of Respondent to Stu Sherman.

8
9
10

IT IS SO ORDERED.
Dated:

June 9, 2014
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

2