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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RESHARD BENARD,

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No. 1:18-cv-00128-SKO HC

Petitioner,
v.

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D. DENHAM, FCI Englewood,

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ORDER DISMISSING PETITION
FOR WRIT OF HABEAS CORPUS
WITH LEAVE TO AMEND

Respondent.
(Doc. 1)

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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

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discipline decision.
I.

Preliminary Screening

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Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary

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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for habeas corpus should not be dismissed without leave to amend unless it appears
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that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,
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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

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corpus shall not extend to a prisoner unless he is "in custody in violation of the Constitution."
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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).

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Petitioner fails to state a cognizable federal claim, because he does not state any grounds

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for the petition. Petitioner left the space designated for the grounds for the petition blank on the

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form for a § 2241 petition. If Petitioner would like the Court to review his petition, he must

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complete the § 2241 petition and include grounds for the petition.

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III.

Petitioner Fails to Name the Proper Respondent

Petitioner names D. Denham, warden of FCI Englewood, as the Respondent in this case.

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The proper respondent for a habeas petition under 28 U.S.C. § 2241 is the petitioner’s warden,

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because the warden has “day-to-day control over” the petitioner and thus can produce the

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petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992).

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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.

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Matavousian.
IV.

Conclusion and Order

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The Court hereby ORDERS:

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1. The petition for writ of habeas corpus shall be dismissed with leave to amend.

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2. The Clerk's Office shall send Petitioner a copy of this order and a form for a

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Petition under 28 U.S.C. § 2241 for Writ of Habeas Corpus by a Person in

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Federal Custody.
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3. Within thirty (30) days of service of this order, Petitioner may file an amended

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petition. Petitioner shall name as respondent the warden of the institution in

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which he is incarcerated. Petitioner shall fully complete the form for the

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amended petition, including all grounds and the facts supporting each ground.
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4. If Plaintiff fails to file an amended petition within thirty (30) days from the

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date of service of this order, the Court will recommend the action be dismissed,

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with prejudice, for failure to obey a court order.

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IT IS SO ORDERED.

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Dated:

February 13, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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