Fernandes v. Fauenheim

Full title: DONALD J. FERNANDES, Petitioner, v. SCOTT FAUENHEIM, Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Sep 11, 2015

2:15-cv-0213 AC P (E.D. Cal. Sep. 11, 2015)

Opinion

DONALD J. FERNANDES, Petitioner, v. SCOTT FAUENHEIM, Respondent. No. 2:15-cv-0213 AC P United States District Court, E.D. California. September 11, 2015

          ORDER

          ALLISON CLAIRE, Magistrate Judge.

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. ECF No. 1, ECF No. 4.

         Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. ECF No. 4. Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         Petitioner alleges five grounds for relief. ECF No. 1. Since petitioner may be entitled to relief if the claimed violations of constitutional rights are proved, respondent will be directed to file a response to petitioner's habeas petition.

         The court notes that petitioner has filed a notice of change of address and is currently housed at the California Medical Facility. "A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Therefore the Warden of the California Medical Facility shall be substituted as respondent and the Clerk of the Court will be directed to amend the docket accordingly.

         In accordance with the above, IT IS HEREBY ORDERED that:

         1. Petitioner's motion to proceed in forma pauperis is granted;

         2. Respondent is directed to file a response to petitioner's habeas petition within sixty days from the date of this order. See Rule 4, 28 U.S.C. foll. § 2254. An answer shall be accompanied by all transcripts and other documents relevant to the issues presented in the petition. See Rule 5, 28 U.S.C. foll. § 2254;

         3. If the response to the habeas petition is an answer, petitioner's reply, if any, shall be filed and served within thirty days after service of the answer;

         4. If the response to the habeas petition is a motion, petitioner's opposition or statement of non-opposition to the motion shall be filed and served within thirty days after service of the motion, and respondent's reply, if any, shall be filed and served within fourteen days thereafter;

         5. The warden of California Medical Facility is substituted as respondent and the Clerk of the Court is directed to amend the docket accordingly; and

         6. The Clerk of the Court shall serve a copy of this order, the form Consent to Proceed Before a United States Magistrate Judge, and a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on Michael Patrick Farrell, Senior Assistant Attorney General.