Ortiz v. People of the State of California
Filing
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ORDER directing respondents to respond to Habeas Corpus Petition signed by Magistrate Judge Gregory G. Hollows on 6/21/2011. Respondents to file pleading w/in 60 days from date of this Order. Petitioner's Reply, Opposition, or Statement of Non-O pposition to Motion shall be filed and served w/in 28 days after service. Clerk to serve copy of this Order, Consent/Reassignment form, and copy of Habeas Corpus Petition upon Michael Patrick Farrell, Senior Assistant Attorney General. Petitioner's 2 Motion to Proceed IFP is GRANTED. (cc: Michael P. Farrell) (Marciel, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSEPH MANUEL ORTIZ,
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Petitioner,
No. CIV S-11-1593 GGH P
vs.
PEOPLE OF THE STATE OF
CALIFORNIA,1
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Respondents.
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ORDER
/
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma
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pauperis.
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Examination of the in forma pauperis application reveals that petitioner is unable
to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be
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“A petitioner for habeas corpus relief must name the state officer having custody of him or
her as the respondent to the petition. This person typically is the warden of the facility in which the
petitioner is incarcerated. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.1992).” Stanley
v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll.
§ 2254). “Failure to name the petitioner’s custodian as a respondent deprives federal courts of
personal jurisdiction. Id.; Dunne v. Henman, 875 F.2d 244, 249 (9th Cir.1989).” Stanley, supra, at
360. In the instant action, petitioner has improperly named the People of the State of California,
rather than the warden of facility wherein he is incarcerated, as respondent. Petitioner is cautioned
that he should name the proper respondent in future filings.
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granted. See 28 U.S.C. § 1915(a).
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Since petitioner may be entitled to relief if the claimed violation of constitutional
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rights is proved, respondents will be directed to file a response to petitioner’s habeas petition.
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In accordance with the above, IT IS HEREBY ORDERED that:
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1. Petitioner’s application to proceed in forma pauperis is granted;
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2. Respondents are directed to file a response to petitioner’s habeas petition
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within sixty days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An
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answer shall be accompanied by all transcripts and other documents relevant to the issues
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presented in the petition. See Rule 5, Fed. R. Governing § 2254 Cases;
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3. If the response to the habeas petition is an answer, petitioner’s reply, if any,
shall be filed and served within twenty-eight days after service of the answer;
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4. If the response to the habeas petition is a motion, petitioner’s opposition or
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statement of non-opposition to the motion shall be filed and served within twenty-eight days after
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service of the motion, and respondents’ reply, if any, shall be filed and served within fourteen
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days thereafter; and
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5. The Clerk of the Court shall serve a copy of this order, the
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consent/reassignment form contemplated by Appendix A(k) to the Local Rules of this court
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together with a copy of the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on
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Michael Patrick Farrell, Senior Assistant Attorney General.
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DATED: June 22, 2011
/s/ Gregory G. Hollows
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UNITED STATES MAGISTRATE JUDGE
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GGH:009
orti1593.100ggh
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