Nooks v. Holder, Jr et al

Filing 6

Judge Nathaniel M. Gorton: ORDER entered. Yolanda Smith, Superintendent of the Suffolk County House of Correction, shall be substituted as the sole respondent in this action. The Clerk shall serve a copy of the Petition upon the United States Atto rney and Yolanda Smith.The Respondent shall, within 21 days of this Order, file an answer or other responsive pleading. The Respondent shall provide the Court with at least 48 hours (i.e. two (2) business days) notice prior to any removal of petition er from the jurisdiction. The Clerk shall provide petitioner with a copy of the petition so that Nooks may sign the last page and return to the Court within thirty-five (35) days of the date of this Order. The Clerk mailed a copy of this order to p etition with a copy of his petition. The clerk served a copy of the order and the petition on Yolanda Smith, Superintendent of the Suffolk County House of Correction 20 Bradston Street, Boston, MA 02118 and the United States Attorney for the District of Massachusetts.(PSSA, 4)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MELVIN CLIFFORD NOOKS,
Petitioner,
v.
YOLANDA SMITH, SUPERINTENDENT,
Respondent.

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CIVIL ACTION No.
15-11757-NMG

ORDER
GORTON, J.
Petitioner Melvin Clifford Nooks (“Nooks”), a native and
citizen of Jamaica, instituted this habeas action on April 30,
2015, pursuant to 28 U.S.C. § 2241 alleging that his continued
post-removal detention by Immigration Customs Enforcement ("ICE")
of the Department of Homeland Security violates his
constitutional rights under the principles of due process
articulated by the Supreme Court in Zadvydas v. Davis, 533 U.S.
678 (2001).

On May 8, 2015, petitioner paid the $5 filing fee.

The petition names the following individuals as respondents:
Eric H. Holder, Jr. Attorney General of the United States; Steven
W. Tompkins, Suffolk County Sheriff; Sean Gallagher, ICE Acting
Field Office Director; and Jeh Johnson, Secretary of Homeland
Security.
As an initial matter, only petitioner’s immediate custodian,
Yolanda Smith, the Superintendent of the Suffolk County House of
Correction, is the proper respondent in this action.

It is well-

settled that a habeas petitioner challenging the legality of his

detention normally must name his immediate custodian, “the
individual having day to day control over the facility in which
[s]he is being detained” as the respondent to the petition.
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2004);

Vasquez v. Reno,

233 F.3d 688, 694 (1st Cir. 2000)(a petitioner's legal custodian
is the individual having day-to-day control over the facility in
which petitioner is being detained), cert. denied, sub nom.
Vasquez v. Ashcroft, 534 U.S. 816 (2001); 28 U.S.C. §

2243 (a

writ of habeas corpus must be “directed to the person having
custody of the person detained.”).

Thus, Superintendent Smith

shall be substituted as the sole respondent in this action.
Additionally, Nooks failed to sign the petition.

Rule

11(a) of the Federal Rules of Civil Procedure requires that
"[e]very pleading . . . if the party is not represented by an
attorney, shall be signed by the party."

See Fed. R. Civ. P.

Rule 11(a); see also District of Massachusetts Local Rule 5.1
(a)(1) ("The provisions of the Federal Rules of Civil Procedure
pertaining to the form and signing of pleadings, motions, and
other papers shall be applicable to all papers filed in any
proceeding in this court.").
contain Nooks’ signature.

This means that the petition must

Nooks will be granted additional time

to file with the court a copy of the petition containing his
original signature.
Finally, because Nooks presents a colorable claim for habeas

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relief, the clerk will be directed to serve the petition.
Accordingly, it is hereby ORDERED that:
(1)

Yolanda Smith, Superintendent of the Suffolk County
House of Correction, shall be substituted as the sole
respondent in this action. See Rumsfeld v. Padilla,
542 U.S. 426, 439 (2004) (immediate custodian of
petitioner is proper respondent in habeas action);
Vasquez v. Reno, 233 F.3d 688, 696 (1st Cir. 2000)
(same, as applied to immigration detainee immediate
custodian of petitioner is proper respondent in habeas
action).

(2)

The Clerk of this Court shall serve a copy of the
Petition upon the United States Attorney for the
District of Massachusetts and Yolanda Smith,
Superintendent Suffolk County House of Correction, 20
Bradston Street, Boston, MA 02118.

(3)

The Respondent shall, within 21 days of this Order,
file an answer or other responsive pleading.

(4)

The Respondent shall provide the Court with at least 48
hours (i.e. two (2) business days) notice prior to any
removal of petitioner from the jurisdiction.

(5)

The Clerk shall provide petitioner with a copy of the
petition so that Nooks may sign the last page and
return to the Court within thirty-five (35) days of the
date of this Order. Failure of the Petitioner to
comply with this directive may result in the dismissal
of this action.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: May 27, 2015

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