Carr v. McDowell

Opinion

PAUL D. CARR, Case No.: 21cv0900 MMA (MMP)

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