(HC) Smith v. Unknown ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BRIAN ANDREW SMITH, No. 1:23-cv-00480-ADA-HBK (HC) 12 Petitioner, ORDER STRIKING MOTION TO AMEND 13 v. (Doc. No. 11) 14 UNKNOWN, ORDER GRANTING PETITIONER LEAVE TO FILE MOTION TO AMEND TO NAME A 15 Respondent. PROPER RESPONDENT 16 THIRTY DAY DEADLINE 17 18 On March 21, 2023, Petitioner filed a petition for writ of habeas corpus under 28 U.S.C. § 19 2254. (Doc. No. 1, “Petition”). Upon initial screening, the Court determined that the Petition did 20 not name a respondent, and Petitioner was granted leave to file a motion to amend to name a 21 proper respondent. On May 4, 2023, Petitioner filed a motion to amend the petition to name a 22 proper respondent; however, Petitioner failed to sign the motion under penalty of perjury. (Doc. 23 No. 11). Thus, the Court strikes the unsigned pleading and grants Petitioner leave to file a signed 24 motion to amend to name a proper respondent in order to avoid dismissal of the action. 25 I. APPLICABLE LAW 26 A. Pleading Must Be Stricken 27 Rule 11 requires all pleadings, written motions, and other papers be signed by at least one 28 attorney of record or by a party personally if the party is unrepresented. Fed. R. Civ. P. 11(a); 1 Petitioner’s failure to sign the Petitioner also violates Local Rule 131 (b), which requires among 2 other things that “[a]ll pleadings ... shall be signed by the individual attorney for the party 3 presenting them, or by the party involved if that party is appearing in propria persona.” L.R. 4 131(b). In addition, Rule 2 of the Rules Governing Section 2254 Cases requires a petition for 5 writ of habeas corpus to “be signed under penalty of perjury by the petitioner.” Because the Court 6 cannot consider unsigned filings, the pleading must be stricken. Fed. R. Civ. P. 11(a); L.R. 7 131(b). L.R. 131(b). See, e.g., West v. Hulbert, 2016 WL 2854416, at *1 (E.D. Cal. May 16, 8 2016); Anderson v. Krpan, 2015 WL 402086, at *2 (E.D. Cal. Jan. 29, 2015). Thus, the 9 undersigned strikes the motion to amend the Petition filed on May 4, 2023. 10 B. Failure to Name a Proper Respondent 11 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 12 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 13 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 14 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 15 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 16 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 17 F.2d 13, 14 (9th Cir. 1971). 18 A petitioner seeking habeas corpus relief must name the officer having custody of him as 19 the respondent to the petition. Rule 2(a) of the Rules Governing § 2254 Cases; Ortiz-Sandoval v. 20 Gomez, 81 F.3d 891, 894 (9th Cir. 1996); Stanley v. California Supreme Court, 21 F.3d 359, 360 21 (9th Cir. 1994). Normally, the person having custody of an incarcerated petitioner is the warden 22 of the prison in which the petitioner is incarcerated because the warden has "day-to-day control 23 over" the petitioner. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992); see also 24 Stanley, 21 F.3d at 360. However, the chief officer in charge of penal institutions is also 25 appropriate. Ortiz, 81 F.3d at 894; Stanley, 21 F.3d at 360. Where a petitioner is on probation or 26 parole, the proper respondent is his probation or parole officer and the official in charge of the 27 parole or probation agency or correctional agency. Id. 28 Petitioner’s failure to name a proper respondent requires dismissal of his habeas petition 1 | for lack of jurisdiction. Stanley, 21 F.3d at 360; Olson v. California Adult Auth., 423 F.2d 1326, 2 | 1326 (9th Cir. 1970); see also Billiteri v. United States Bd. Of Parole, 541 F.2d 938, 948 (2nd 3 | Cir. 1976). The Court will afford Petitioner an opportunity to cure this defect by amending the 4 | petition to name the proper respondent, such as the warden of his facility. See West v. Louisiana, 5 | 478 F.2d 1026, 1029 (Sth Cir. 1973), vacated in part on other grounds, 510 F.2d 363 (Sth Cir. 6 | 1975) (en banc) (allowing petitioner to amend petition to name proper respondent); Ashley v. 7 | State of Washington, 394 F.2d 125 (9th Cir. 1968) (same). In the interests of judicial economy, 8 | Petitioner need not file an amended petition. Instead, Petitioner may file a motion entitled 9 | "Motion to Amend Petition to Name Proper Respondent” in which Petitioner identifies the name 10 || of the proper respondent he seeks to substitute in this action. 11 Accordingly, it is ORDERED: 12 1. The Court strikes the unsigned motion to amend (Doc. No. 11). 13 2. Petitioner is GRANTED thirty days (30) from the date of service of this Order in 14 | which to file a signed motion to amend the instant petition and name a proper respondent. Failure 15 || to timely comply with this Order will result in a recommendation that the petition be dismissed 16 | without further notice. '7 | Dated: _ May 8, 2023 Mihaw. Wh. foareh Zaskth 18 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28