Wright v. Keller

Filing 12

ORDER that within 20 days of this Order, Petitioner shall file a motion to amend his petition naming Alvin Keller, Secretary of the Department of Correction, as the proper respondent in this action. Failure to file such an amendment within 20 days may result in the dismissal of this action. Signed by Chief Judge Robert J. Conrad, Jr on 10/7/11. (Pro se litigant served by US Mail.)(gpb)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11CV341-RJC

LOY ALEXANDER WRIGHT,

)
)
Petitioner,
)
)
v.
)
)
NORTH CAROLINA DEPARTMENT )
OF CORRECTION,
)
)
Respondent.
)
____________________________________)

ORDER

THIS MATTER is before the Court on Petitioner’s Petition for Writ of Habeas Corpus
filed July 15, 2011 (Doc. No. 1); Respondent’s Motion for Summary Judgment and
memorandum in support filed August 9, 2011 (Docs. No. 4 and 5); and Petitioner’s response
filed September 15, 2011 (Doc. No. 8).
In its brief supporting its summary judgment motion, the State contends that Petitioner
has failed to name the proper party as Respondent. (Doc. No. 5 at 16). The State is correct. See
28 U.S.C. § 2242. The proper respondent to a habeas petition is the person who has custody
over the petitioner. Id.; see also Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004). Petitioner
has named the North Carolina Department of Correction as the Respondent in this action.
However, the North Carolina Department of Correction does not have custody, physical or legal,
over Petitioner.1 The State argues that Petitioner’s failure to name the proper respondent

1

Congress has authorized § 2254 petitioners challenging present physical custody to
name either the warden or the chief state penal officer as a respondent. Rules Governing § 2254
Proceedings, Rule 2(a), 28 U.S.C.A. foll. § 2254; Advisory Committee’s Note on Rule 2(a)
(adopted 1976).
1

deprives this Court of jurisdiction.
Courts are split with respect to whether failure to name the proper respondent deprives a
federal court of jurisdiction. Compare West v. Louisiana, 478 F.2d 1026 (5th Cir. 1973), vacated
in part on other grounds, 510 F.2d 363 (1975) (holding that “failure to name a proper respondent
is a procedural rather than jurisdictional defect, and it may be corrected by amendment of the
petition.”); McMaster v. City of Troy, 911 F.2d 733, at *3 (6th Cir. 1990) (unpublished table
decision); Byrd v. Martin, 754 F.2d 963, 965 (11th Cir. 1985) (proper remedy for failure to name,
as respondent, Attorney General of state in which judgment is attacked, as required by Rule 2(b)
of the Rules Governing § 2254 cases, is not dismissal but return of petition for amendment
pursuant to Rule 2(e)), with Stanley v. California Supreme Court, 21 F.3d 359 (9th Cir. 1994)
(remanding habeas to district court with instructions to dismiss for lack of jurisdiction unless
petitioner could timely amend his petition to name the correct party as respondent). The Fourth
Circuit has yet to weigh in on this issue, but other district courts in this circuit have held that the
petitioner should be permitted to amend his petition to name the proper party. See, e.g., Boggs
v. Pierce, 1:99cv379, 2000 WL 33737318, at *2 (M.D.N.C. Aug. 2, 2000).
This Court has jurisdiction to allow an amendment naming the proper respondent.
Therefore, the Court directs Petitioner to file a motion to amend his petition naming Alvin
Keller, Secretary of the Department of Correction, as the proper respondent in this action.
Petitioner shall file a motion to amend within twenty (20) days of the date of this order. Failure
to file such an amendment may result in the dismissal of this action.
IT IS, THEREFORE, ORDERED that within twenty (20) days of the date of this
Order, Petitioner shall file a motion to amend his petition naming Alvin Keller, Secretary of the
Department of Correction, as the proper respondent in this action. Petitioner’s motion to amend
2

may only include an amendment to name the proper respondent. Failure to file such an
amendment with twenty (20) days may result in the dismissal of this action.

Signed: October 7, 2011

3