Taylor v. San Diego County et al

Filing 3

ORDER Dismissing Case Without Prejudice and With Leave to Amend: To have this case reopened, Petitioner must, no later than August 10, 2010 submit a First Amended Petition which cures the pleading deficiencies outlined in this Order. Signed by Judge Larry Alan Burns on 6/9/10.(All non-registered users served via U.S. Mail Service, Blank copy of 1st Amended Petition mailed to Petitioner with copy of order)(pdc)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. SAN DIEGO COUNTY, et al., Respondents. P e titio n e r, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas C o rp u s pursuant to 28 U.S.C. § 2254. F A IL U R E TO NAME PROPER RESPONDENT R ev ie w of the Petition reveals that Petitioner has failed to name a proper respondent. On f e d era l habeas, a state prisoner must name the state officer having custody of him as the re s p o n d e n t. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U .S .C . foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to n a m e a proper respondent. See id. T h e warden is the typical respondent. However, "the rules following section 2254 do not s p e c if y the warden." Id. "[T]he `state officer having custody' may be `either the warden of the in s titu tio n in which the petitioner is incarcerated . . . or the chief officer in charge of state penal in s titu tio n s .'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note). If "a p e titio n e r is in custody due to the state action he is challenging, `[t]he named respondent shall RONALD WAYNE TAYLOR, Petitioner, ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND Civil No. 10-1122 LAB (PCL) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

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b e the state officer who has official custody of the petitioner (for example, the warden of the p ris o n ).'" Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee's note). A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] h a b e as corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The a c tu a l person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. W a s h in g to n , 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of h a b e as corpus acts upon the custodian of the state prisoner, the person who will produce "the b o d y" if directed to do so by the Court. "Both the warden of a California prison and the Director o f Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d a t 895. H e re , Petitioner has incorrectly named "San Diego County and Jerry E. Brown," as R e s p o n d e n ts . In order for this Court to entertain the Petition filed in this action, Petitioner must n a m e the warden in charge of the state correctional facility in which Petitioner is presently c o n f in e d or the Director of the California Department of Corrections. Brittingham v. United S ta te s, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). CONCLUSION F o r the foregoing reason, the Court DISMISSES the Petition without prejudice and with le a v e to amend. To have this case reopened, Petitioner must, no later than August 10, 2010: su b m it a First Amended Petition which cures the pleading deficiencies outlined in this Order. T H E CLERK OF COURT IS DIRECTED TO MAIL PETITIONER A BLANK FIRST A M E N D E D PETITION FORM TOGETHER WITH A COPY OF THIS ORDER. I T IS SO ORDERED.

D A T E D : June 9, 2010

H ONORABLE LARRY ALAN BURNS U n ite d States District Judge

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