Benjamin Tabayoyong Caridad v. Harry Oreol, et al

Filing 47

ORDER signed by Magistrate Judge Allison Claire on 06/11/15 denying 40 Motion to Dismiss. Respondent is directed to file a response to petitioner's habeas petition within 60 days after the filing date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BENJAMIN T. CARIDAD,

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Petitioner,

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No. 2:14-cv-1847 KJM AC P

v.

ORDER

HARRY OREOL,1

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Respondent.

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By order filed June 3, 2015, respondent was accorded the opportunity to request that the

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court vacate the pending motion to dismiss in this action with leave to file an amended motion.

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See ECF No. 44. Respondent timely responded and requests that the court deny the motion to

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dismiss without prejudice to the filing of an amended motion or an answer to petitioner’s

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amended petition. Respondent requests a sixty-day period within which to file and serve a new

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responsive pleading.

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Accordingly, for good cause shown, IT IS HEREBY ORDERED that:

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1. The pending motion to dismiss, ECF No. 40, is denied without prejudice.

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Harry Oreol is Executive Director at Patton State Hospital, where plaintiff is detained. A
federal petition for writ of habeas corpus must name as respondent the state officer having
custody of petitioner. See 28 U.S.C. § 2254; Rule 2(a), Rules Governing Section 2254 Cases in
the U.S. District Courts; Smith v. Idaho, 392 F.3d 350, 354-55 (9th Cir. 2004); Stanley v.
California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
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2. Respondent is directed to file a response to petitioner’s habeas petition within sixty

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days after the filing date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be

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accompanied by all transcripts and other documents relevant to the issues presented in the

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petition. See Rule 5, 28 U.S.C. foll. § 2254;

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3. If the response to the habeas petition is an answer, petitioner’s reply, if any, shall be
filed and served within thirty days after service of the answer;
4. If the response to the habeas petition is a motion, petitioner’s opposition or statement

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of non-opposition to the motion shall be filed and served within thirty days after service of the

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motion, and respondent’s reply, if any, shall be filed and served within fourteen days thereafter.

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SO ORDERED.

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DATED: June 11, 2015

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