Marthell v. Tilton

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 1/5/09 ORDERING that petitioner's 2 request for leave to proceed ifp is GRANTED; the 1 petition is DISMISSED w/ leave to file an amended petition w/in 30 days; the clerk to send petitioner the hc petition form used in this court. (Yin, K)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 vs. JAMES E. TILTON, et al., Respondents. / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. 2254. He seeks leave to proceed in forma pauperis. See 28 U.S.C. 1915. Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined. See Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent the Director of the California Department of Corrections and Rehabilitations, James E. Tilton, who does not have custody over petitioner. Petitioner has not named the proper respondent. //// 1 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA KERRY MARTHELL, Petitioner, No. CIV S-08-0798 JAM EFB P ORDER 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Accordingly, it is ORDERED that: 1. Petitioner's request for leave to proceed in forma pauperis is granted; and, 2. The April 14, 2008, petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court. Dated: January 5, 2009. 2

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