Thomas v. Unnamed Respondents

Filing 2

ORDER DISMISSING CASE Without Prejudice. The Court Dismisses the Petition without prejudice due to Petitioner's failure to name a proper respondent. To have this case reopened, Petitioner must file a First Amended Petition no later than June 9, 2014 in conformance with this Order. (A blank petition form is included with this Order for Petitioner's convenience.). Signed by Judge Gonzalo P. Curiel on 4/9/2014. (All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER A. THOMAS,
Petitioner,
v.
UNNAMED,
Respondent.

Civil No.

14-0772 GPC (MDD)

ORDER DISMISSING CASE
WITHOUT PREJUDICE

Petitioner, a state prisoner proceeding pro se,1 has filed a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2254 and paid the filing fee.

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FAILURE TO NAME A PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper respondent. On

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federal habeas, a state prisoner must name the state officer having custody of him as the

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respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28

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U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to

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name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254 do not

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specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the warden of the

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institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal

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Although not entirely clear from the face of the petition, it appears Petition is in custody at
California Substance Abuse Treatment Facility and State Prison, Corcoran.
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institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee’s note). If “a

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petitioner is in custody due to the state action he is challenging, ‘[t]he named respondent shall

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be the state officer who has official custody of the petitioner (for example, the warden of the

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prison).’” Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee’s note)

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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a writ of]

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habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The

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actual person who is [the] custodian [of the petitioner] must be the respondent.” Ashley v.

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Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of

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habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the

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body” if directed to do so by the Court. “Both the warden of a California prison and the Director

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of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d

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at 895.

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Here, Petitioner has failed to name a Respondent. In order for this Court to entertain the

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Petition filed in this action, Petitioner must name the warden in charge of the state correctional

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facility in which Petitioner is presently confined or the Secretary of the California Department

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of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

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1992) (per curiam). Accordingly, the Court DISMISSES the Petition without prejudice due to

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Petitioner’s failure to name a proper respondent. To have this case reopened, Petitioner must

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file a First Amended Petition no later than June 9, 2014 in conformance with this Order. (A

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blank petition form is included with this Order for Petitioner’s convenience.)

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IT IS SO ORDERED.

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DATED: April 9, 2014

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HON. GONZALO P. CURIEL
United States District Judge

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