Russell v. Foulk

Filing 8

ORDER Granting 7 Petitioner's Motion to Amend to Name a Proper Respondent; ORDER Directing Clerk of Court to Substitute Respondent, signed by Magistrate Judge Gary S. Austin on 6/23/14. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL DEMOND RUSSELL,

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Case No. 1:14-cv-00685 GSA HC

Petitioner,

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

v.
FREDRIC FOULK, Warden,

ORDER DIRECTING CLERK OF COURT
TO SUBSTITUTE RESPONDENT

Respondent.

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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).
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DISCUSSION
On May 27, 2014, after conducting a preliminary review of the petition, the Court

22 determined that Petitioner had failed to name a proper respondent. The Court granted Petitioner
23 leave to file a motion to amend the petition in order to name a proper respondent. On June 16,
24 2014, Petitioner filed a motion to amend the petition to name Fredric Foulk, the warden of his
25 institution, as Respondent. A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254
26 must name the state officer having custody of him as the respondent to the petition. Rule 2 (a) of
27 the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996);
28 Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Normally, the person

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1 having custody of an incarcerated petitioner is the warden of the prison in which the petitioner is
2 incarcerated because the warden has "day-to-day control over" the petitioner. Brittingham v.
3 United States, 982 F.2d 378, 379 (9th Cir. 1992); see also Stanley, 21 F.3d at 360. Therefore,
4 Petitioner’s motion is proper and will be granted.
ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) Petitioner’s motion to amend the petition is GRANTED;

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2) The Clerk of Court is DIRECTED to substitute Fredric Foulk as Respondent in this

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IT IS SO ORDERED.
Dated:

June 23, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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