Frederick Tellez v. Warden
Filing
4
Minutes in Chambers by Magistrate Judge Sheri Pym, Order to Show Cause Why Petition Should Not Be Dismissed for Failure to Name Respondent. Petitioner is ordered to file with the court a written response to the Order to Show Cause on or before May 28, 2012. (kca)
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-3788-GW (SP)
Title
FREDERICK TELLEZ v. __________, Warden
Present: The Honorable
Date
May 7, 2012
Sheri Pym, United States Magistrate Judge
Kimberly I. Carter
Deputy Clerk
n/a
Court Reporter / Recorder
n/a
Tape No.
Attorneys Present for Petitioner:
Attorneys Present for Respondent:
n/a
n/a
Proceedings:
(In Chambers) Order to Show Cause Why Petition Should Not Be
Dismissed for Failure to Name Respondent
On May 2, 2012, petitioner filed a Petition for Writ of Habeas Corpus by a Person
in State Custody under 28 U.S.C. § 2254. The petition fails to name a respondent.
A habeas petition filed pursuant to 28 U.S.C. § 2254 by a petitioner who is
currently in custody under a state court judgment must name as respondent the state
officer who has custody of the petitioner. Rumsfeld v. Padilla, 542 U.S. 426, 434-35,
124 S. Ct. 2711, 159 L. Ed. 2d 513 (2004); 28 U.S.C. § 2242; Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts (“If the petitioner is
currently in custody under a state-court judgment, the petition must name as respondent
the state officer who has custody.”). Thus, “[t]he default rule is that the proper
respondent is the warden of the facility where the prisoner is being held . . . .” Rumsfeld,
542 U.S. at 435; accord Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir.
1994) (as amended May 18, 1994) (the proper respondent to the habeas petition is
“typically . . . the warden of the facility in which the petitioner is incarcerated”). The
Ninth Circuit has held that the “[f]ailure to name the correct respondent destroys
personal jurisdiction.” Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (as
amended May 8, 1996); see also Stanley, 21 F.3d at 360.
Although it appears that petitioner is currently incarcerated at Calipatria State
Prison, he does not name the warden of that institution – or anyone else – as the
respondent.
Accordingly, the court hereby issues an ORDER TO SHOW CAUSE why the
petition should not be dismissed for failure to name a proper respondent. Petitioner is
ordered to file with the court a written response to the Order to Show Cause on or
before May 28, 2012.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 1 of 2
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Case No.
CV 12-3788-GW (SP)
Date
Title
May 7, 2012
FREDERICK TELLEZ v. __________, Warden
In his response to the Order to Show Cause, petitioner may set forth any reasons
he wishes to argue against the dismissal of the action. Alternatively, petitioner may file
a response in which he identifies the name of the proper respondent and requests the
court to deem the petition amended to name the person he identifies as the respondent.
Fed. R. Civ. P. 15. Whichever option petitioner selects, petitioner must file and serve the
responding document no later than May 28, 2012.
The court warns petitioner that failure to timely file and serve a response as
directed in this Order will result in a recommendation that this action be dismissed
without prejudice for failure to name a proper respondent, for failure to prosecute,
and/or for failure to obey court orders.
CV-90 (06/04)
CIVIL MINUTES - GENERAL
Page 2 of 2
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