Lord v. Brown

Full title: RICHARD LORD, Petitioner, v. JERRY BROWN, Governor of State of California…

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA

Date published: Sep 28, 2015

Case No. 1:15-cv-01437-SKO HC (E.D. Cal. Sep. 28, 2015)

Opinion

Case No. 1:15-cv-01437-SKO HC

09-28-2015

RICHARD LORD, Petitioner, v. JERRY BROWN, Governor of State of California, Respondent.

Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE

ORDER DISMISSING PETITION FOR LACK OF JURISDICTION WITH LEAVE TO AMEND WITHIN 30 DAYS

Petitioner is a civil detainee of the State of California proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

I. Discussion

Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9^th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9^th Cir. 1971).

A petitioner seeking habeas corpus relief under 28 U.S.C. § 2254 must name the state officer having custody of him as the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9^th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 (9^th Cir. 1994). A petitioner's failure to name a proper respondent requires dismissal of his habeas petition for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Authority, 423 F.2d 1326, 1326 (9^th Cir.), cert. denied, 398 U.S. 914 (1970).

In this case, Petitioner names Jerry Brown, Governor of State of California, as Respondent. Governor Brown is not an appropriate respondent. Petitioner is detained at Coalinga State Hospital, Coalinga, California. The Acting Director of Coalinga State Hospital is Audrey King. Because Director King is the state officer having custody of Petitioner in this case, Petitioner must name her as Respondent.

II. Conclusion and Order

Accordingly, the Court hereby ORDERS:

1. The petition for writ of habeas corpus is DISMISSED with leave to amend for lack of jurisdiction.

2. The Clerk of Court shall send Petitioner a copy of this order and a form for Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.

3. Within 30 days of service of this order, Petitioner shall file an amended petition naming the proper respondent. Petitioner shall sign the petition under penalty of perjury.

4. If Petitioner fails to file an amended petition within 30 days from the date of service of this order, this action will be dismissed without further notice for lack of jurisdiction.

IT IS SO ORDERED. Dated: September 28 , 2015

/s/ Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE