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Oliver v. California Dep't of Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 14, 2009

ROBERT JOHN OLIVER, PETITIONER,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

ORDER

Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. He has paid the $5.00 filing fee. See 28 U.S.C. § 1914(a).

A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as the respondent the California Department of Corrections, which does not have custody over petitioner. Petitioner has not named the proper respondent.

Accordingly, it is ORDERED that the September 29, 2008, petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in this action being dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.

20090114

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