Reshard Benard v. Denham

Filing 2

ORDER DISMISSING PETITION for Writ of Habeas Corpus with Leave to Amend signed by Magistrate Judge Sheila K. Oberto on 02/13/2018. Amended Complaint due by 3/19/2018. (Attachments: # 1 Petition for Writ of Habeas Corpus)(Flores, E)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RESHARD BENARD, 11 12 No. 1:18-cv-00128-SKO HC Petitioner, v. 13 D. DENHAM, FCI Englewood, 14 ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITH LEAVE TO AMEND Respondent. (Doc. 1) 15 16 17 18 SCREENING ORDER Petitioner, Reshard Benard, is a federal prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petition appears to seek review of a prison 19 20 21 discipline decision. I. Preliminary Screening 22 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 24 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 25 Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 26 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 27 28 that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 1 1 2 3 440 F.2d 13, 14 (9th Cir. 1971). II. Petitioner Fails to State a Claim The scope of habeas corpus is prescribed by statute. Section 2241(c) provides that habeas 4 corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution." 5 6 7 The Supreme Court has held that "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody." Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). 8 Petitioner fails to state a cognizable federal claim, because he does not state any grounds 9 for the petition. Petitioner left the space designated for the grounds for the petition blank on the 10 form for a § 2241 petition. If Petitioner would like the Court to review his petition, he must 11 complete the § 2241 petition and include grounds for the petition. 12 13 14 III. Petitioner Fails to Name the Proper Respondent Petitioner names D. Denham, warden of FCI Englewood, as the Respondent in this case. 15 The proper respondent for a habeas petition under 28 U.S.C. § 2241 is the petitioner’s warden, 16 because the warden has “day-to-day control over” the petitioner and thus can produce the 17 petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992). 18 19 Based on his address, Petitioner appears to currently be incarcerated at USP Atwater. Therefore, the appropriate Respondent in this case is the warden at USP Atwater, A. 20 21 22 Matavousian. IV. Conclusion and Order 23 The Court hereby ORDERS: 24 1. The petition for writ of habeas corpus shall be dismissed with leave to amend. 25 2. The Clerk's Office shall send Petitioner a copy of this order and a form for a 26 Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in 27 Federal Custody. 28 2 1 3. Within thirty (30) days of service of this order, Petitioner may file an amended 2 petition. Petitioner shall name as respondent the warden of the institution in 3 which he is incarcerated. Petitioner shall fully complete the form for the 4 amended petition, including all grounds and the facts supporting each ground. 5 4. If Plaintiff fails to file an amended petition within thirty (30) days from the 6 7 date of service of this order, the Court will recommend the action be dismissed, 8 with prejudice, for failure to obey a court order. 9 10 IT IS SO ORDERED. 11 12 Dated: February 13, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 .

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