Carr v. McDowell

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PAUL D. CARR, Case No.: 21cv0900 MMA (MMP)

12 Petitioner, ORDER SUA SPONTE 13 v. SUBSTITUTING RESPONDENT 14 JEFF MACOMBER, Secretary, 15 Respondent. 16 17 On May 10, 2021, Petitioner, a state prisoner proceeding pro se and in forma 18 pauperis, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, naming 19 “Neil McDowell,” the Warden of the Ironwood State Prison, where Petitioner was confined 20 at the time, along with “Rob Bonta,” the Attorney General of the State of California, as 21 Respondents, and named those same two Respondents in the First Amended Petition filed 22 on March 16, 2023. (ECF No. 1 at 1; ECF No. 30 at 1.) On August 21, 2023, Petitioner 23 notified the Court that he had been transferred to the California Medical Facility in 24 Vacaville, California. (ECF No. 6.) 25 A writ of habeas corpus acts upon the custodian of the state prisoner. See 28 U.S.C. 26 § 2242; Rules Governing § 2254 Cases, Rule 2(a), 28 U.S.C. § foll. 2254. Because 27 Petitioner’s place of custody has changed, so has the Respondent to this action. In order 28 to conform with the requirements of Rule 2(a) of the Rules Governing § 2254 Cases and 1 avoid changing the Respondent if Petitioner is transferred again, the Court hereby sua 2 || sponte orders the substitution of Jeff Macomber, Secretary of the California Department of 3 ||Corrections and Rehabilitation, as Respondent in place of Warden Neil McDowell. See 4 || Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in 5 || § 2254 proceedings may be the chief officer in charge of state penal institutions). 6 In addition, the Attorney General of the State of California is not a proper respondent 7 this action. Rule 2 of the Rules following § 2254 provides that the state officer having 8 custody of the petitioner shall be named as respondent. Rules Governing § 2254 Cases, 9 || Rule 2(a), 28 U.S.C. foll. § 2254. However, “[i]f the petitioner is not yet in custody—but 10 ||may be subject to future custody—under the state-court judgment being contested, the 11 petition must name as respondents both the officer who has current custody and the 12 || attorney general of the state where the judgment was entered.” Rules Governing § 2254 13 ||Cases, Rule 2(b), 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to have 14 ||named the California Attorney General as a respondent in this action. 15 The Court HEREBY ORDERS the substitution of Jeff Macomber, Secretary of the 16 California Department of Corrections and Rehabilitation as Respondent in place of “Neil 17 ||McDowell” and “Rob Bonta.” The Clerk of the Court will modify the docket to reflect 18 || “Jeff Macomber, Secretary” in place of the former respondents. 19 IT IS SO ORDERED. 20 |! Dated: October 4, 2023 21 22 Wyhsler ota 23 Honorable Michelle M. Pettt 54 United States Magistrate Judge 25 26 27 28