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McINTOSH v. LAMBERT
May 4, 2005.
MARK McINTOSH, Petitioner,
GREGORY LAMBERT and the ATTORNEY GENERAL for the STATE of ILLINOIS, Respondents.
The opinion of the court was delivered by: MICHAEL J. REAGAN, District Judge
Petitioner, currently incarcerated in the Big Muddy River
Correctional Center, brings this habeas corpus action pursuant to
28 U.S.C. § 2254 to challenge the constitutionality of his
confinement. He seeks leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915, and the Court finds that Petitioner
is, in fact, indigent. Therefore, the motion for leave to proceed
in forma pauperis (Doc. 2) is GRANTED. However, the motion
for return of his original petition (Doc. 6) is DENIED as moot,
as Petitioner has now filed an amended petition as ordered.
Before further proceedings are ordered, a few words about the
named respondents are necessary. Petitioner names as a respondent
not only the warden of his prison but also the Attorney General
of Illinois. This practice is quite common among pro se
litigants in this District, but the only proper respondent in a
collateral attack is Petitioner's custodian. As stated clearly by
the Seventh Circuit,
The Attorney General of [Illinois] is the state's
lawyer, not the prisoner's custodian. If the
petitioner is in prison, the warden is the right
respondent. If the petitioner is on parole, the parole board or equivalent should be
named. A state's attorney general is a proper party
only if the petitioner is not then confined, but
expects to be taken into custody.
Hogan v. Hanks, 97 F.3d 189, 190 (7th Cir. 1996) (emphasis
added). See also Cruz v. Warden of Dwight Correctional Center,
907 F.2d 665
, 665 n. 1 (7th Cir. 1990); Rules 2(a) and (b) of the
Rules Governing Section 2254 Cases in the United States District
Courts. Because Petitioner is incarcerated, the only proper
respondent is Warden Lambert. The Attorney General of Illinois is
DISMISSED as a party and should not appear as a litigant in any
future § 2254 case except under the conditions specified in Rule
IT IS HEREBY ORDERED that Respondent shall, within
twenty-three (23) days of receipt of this application for Writ of
Habeas Corpus, answer and show cause why the writ should not
Service upon the Illinois Attorney General, Criminal Appeals
Bureau, 100 West Randolph, 12th Floor, Chicago, Illinois 60601
shall constitute sufficient service.
IT IS FURTHER ORDERED that pursuant to Local Rule 72.1(a)(2),
this cause is referred to a United States Magistrate Judge for
further pre-trial proceedings.
IT IS FURTHER ORDERED that this entire matter be REFERRED
to a United States Magistrate Judge for disposition, as
contemplated by Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c),
should all the parties consent to such a referral.
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