Dikes v. Ndoh
- Proceeding
- district
- Area
- civil
- Panel
- Nita Stormes (author)
Analysis
The court reviewed a pro se state prisoner's petition for writ of habeas corpus and noted that the petitioner had been transferred from Avenal State Prison to Valley State Prison. The court sua sponte ordered the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation, as the respondent in place of the former warden.
| What the court decided | The model |
|---|---|
Substitution of Respondent“the Court hereby sua sponte ORDERS the substitution of Kathleen Allison, Secretary of the California Department of Corrections and Rehabilitation, as Respondent in place of “Rosemary Ndoh.”” | agree with court The decision follows from the legal requirement that a habeas petition must be directed to the actual custodian of the prisoner. Because the petitioner was transferred, the named respondent was no longer the custodian. Substituting the Secretary of the Department of Corrections and Rehabilitation is a standard procedural mechanism to ensure the petition remains viable regardless of future transfers. |
The order itself: sound — The order correctly identifies the procedural defect (change of custody) and applies the appropriate legal standard (Rule 2(a) and 28 U.S.C. § 2242) to resolve it. The citation to Ortiz-Sandoval provides specific Ninth Circuit authority for naming the Secretary as respondent. The reasoning is direct and legally sound for a procedural sua sponte order.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL GERALD DIKES, Case No.: 3:20-cv-00335-MMA-NLS 12 Petitioner, ORDER SUA SPONTE 13 v. SUBSTITUTING RESPONDENT 14 KATHLEEN ALLISON, Secretary, et al., 15 Respondents. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. At the time of filing, Petitioner was apparently housed 19 at Avenal State Prison and thus named Rosemary Ndoh, Warden, as Respondent. Based on 20 the notice of change of address Petitioner submitted to the Court on August 10, 2021, it 21 appears Petitioner is no longer housed at Avenal State Prison; rather, it appears he is 22 presently incarcerated at Valley State Prison in Chowchilla, California. 23 A writ of habeas corpus acts upon the custodian of the state prisoner. See 28 U.S.C. 24 § 2242; Rule 2(a), 28 U.S.C. foll. § 2254. Because Petitioner’s place of custody has 25 changed, so has his custodian. Accordingly, in order to conform with the requirements of 26 Rule 2(a) of the Rules Governing § 2254 Cases and to avoid changing the Respondent 27 again if Petitioner is transferred to another prison or paroled, the Court hereby sua sponte 28 ORDERS the substitution of Kathleen Allison, Secretary of the California Department of 1 || Corrections and Rehabilitation, as Respondent in place of “Rosemary Ndoh.” See Ortiz- 2 || Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 3 || proceedings may be the chief officer in charge of state penal institutions). The Clerk of the 4 || Court will modify the docket to reflect “Kathleen Allison, Secretary” as respondent in place 5 ||of “Rosemary Ndoh.” 6 IT IS SO ORDERED. 7 ||Dated: August 12, 2021 ZO Mie. L_ LE 9 Hon. Nita L. Stormes United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28