Cook v. Warden, Solano State Prison

Filing 22

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/10/2013 DENYING petitioner's 17 request for reconsideration. (Yin, K)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 MAURICE COOK, JR., Petitioner, 11 12 13 vs. GARY SWARTHOUT,1 Respondent. 14 ORDER / 15 16 No. 2:13-cv-0126 GEB EFB P Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. On April 3, 2013, petitioner filed a request for entry of default against 18 Michael Patrick Farrell, Senior Assistant Attorney General for the State of California. Dckt. No. 19 14. The Clerk of the Court declined to enter default against Michael Patrick Farrell because he is 20 not the respondent in this action. Dckt. No. 15. Petitioner now requests that Clerk’s decision be 21 reconsidered and that default be entered against Justain Paul Riley, counsel for respondent. Dckt. 22 No. 17. Petitioner’s request must be denied. 23 1 24 25 26 “Warden” was previously named as respondent. Gary Swarthout is the warden of the California State Prison, Solano, where petitioner is confined. “A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition.” Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Accordingly, the court now substitutes in Gary Swarthout as the respondent. 1 1 In his request for reconsideration, petitioner once again fails to name the proper 2 respondent. Petitioner also failed to name the proper respondent when initiating this action. The 3 only proper respondent in this action is the state officer having custody of him, which is 4 currently Gary Swarthout. See Stanley, 21 F.3d at 360. 5 Nevertheless, entry of default would have been inappropriate in this case had petitioner 6 named Gary Swarthout as the respondent. Petitioner contends that he is entitled to entry of 7 default based on respondent’s failure to timely file a response to the petition. Dckt. No. 14. On 8 January 30, 2013, the undersigned ordered respondent to file a response to the petition within 60 9 days. On April 2, 2013, respondent timely filed a request for an extension of time to file a 10 responsive pleading. Fed. R. Civ. P. 6(a)(6), (b). That request was granted on April 3, 2013 and 11 the date for filing a responsive pleading was extended to May 2, 2013. Respondent timely filed 12 a motion to dismiss on May 2, 2013, and petitioner is not entitled to entry of default against 13 respondent. 14 Accordingly, it is hereby ORDERED that petitioner’s request for reconsideration, Dckt. 15 No. 17, is denied. 16 Dated: May 10, 2013. 17 18 19 20 21 22 23 24 25 26 2

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