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Nancy Auvil v. Unknown

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


May 20, 2011

NANCY AUVIL,
PETITIONER,
v.
UNKNOWN,
RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER DISMISSING PETITION WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

Petitioner, a state prisoner represented by counsel, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, and paid the $5.00 filing fee. Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). "The 'state officer having custody' may be 'either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note).

Here, Petitioner has failed to name a Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden currently in charge of the state correctional facility in which Petitioner is presently confined or the Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

Accordingly, the Court DISMISSES the Petition without prejudice and with leave to amend due to Petitioner's failure to name a proper respondent. To have this case reopened, Petitioner must file a First Amended Petition no later than July 17, 2011 in conformance with this Order.

IT IS SO ORDERED.

Copies to: ALL PARTIES

20110520

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