Goldstein v. Center for Disease Control

Filing 4

ORDER for service upon Respondents. Signed by US Magistrate Judge Veronica L. Duffy on 3/16/2016. (CG)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
DAVID SCOTT GOLDSTEIN,

4:16-CV-04035-KES

Petitioner,

ORDER FOR SERVICE

vs.
CENTER FOR DISEASE CONTROL,
Respondent.

INTRODUCTION
Petitioner, David Scott Goldstein, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2241. He alleges he is being held against his
will by the Center for Disease Control (CDC) at Avera McKennan Hospital in
Sioux Falls, South Dakota. Mr. Goldstein names as the sentencing court the
“CDC in Atlanta, GA.” Docket 1, p. 2.
A court should always first determine the threshold question of whether
it has jurisdiction before it proceeds to determine the merits of a habeas
petition. Sampson v. Warden, FCC Coleman USP, 605 Fed. Appx. 861, 863
(11th Cir. 2015). Upon inquiry to the U.S. Marshals Service the court has been
informed that Mr. Goldstein remains in the custody of the CDC but is no longer
in the state of South Dakota. “A grant of a writ of habeas corpus operates
against the restraining authority.” Lee v. Wetzel, 244 F.3d 370, 374 (5th Cir.
2001) citing Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95

(1973). “Therefore, the court issuing the writ of habeas corpus must have
jurisdiction over the petitioner or his custodian.” Lee, 244 F.3d at 374 citing
Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999). “Without such
jurisdiction, the court has no authority to direct the actions of the restraining
authority.” Lee, 244 F.3d at 374, citing Malone, 165 F.3d at 1237.
ORDER
The court directs that the petition in this case be served and that a
response be filed. The respondents should address whether this court has
jurisdiction to proceed to the merits of this claim. If the respondents take the
position this court does not have jurisdiction, they are instructed to inform this
court where Mr. Goldstein is currently being held so an appropriate transfer
order can be entered. Accordingly,
IT IS ORDERED:
(1)
(2)
(3)

that the Clerk of Court shall serve upon respondents and the
United States Attorney for the District of South Dakota a copy of
the petition and this order;
that within 21 days after service, respondents are directed to show
cause why a writ pursuant to 28 U.S.C. § 2241 should not be
granted;
that petitioner may file a reply within 14 days of service of the
respondents’ response.

DATED this 16th day of March, 2016.

BY THE COURT:

VERONICA L. DUFFY
United States Magistrate Judge