Cook v. CA Department of Corrections

Filing 6

ORDER signed by Magistrate Judge Dale A. Drozd on 9/23/2010 ORDERING that the 9/21/10 order is VACATED; ptnr's 5 request to proceed IFP is GRANTED; ptnr's habeas corpus application is DISMISSED w/ leave to file an amended petition naming the proper respondent w/in 30 days; and the clerk to send ptnr the habeas corpus form. (Yin, K)

(HC) Cook v. CA Department of Corrections

Doc. 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Respondent. 15 16 17 18 19 20 21 22 23 24 25 26 On September 21, 2010, the court ordered plaintiff to file a properly completed request to proceed in forma pauperis. Petitioner, however, had already filed a properly completed request to proceed in forma pauperis the previous day but it was not reflected on the court's docket until the following day. Accordingly, the court will vacate its September 21, 2010 order. 1
Dockets.Justia.com
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA MATTHEW W. COOK, Petitioner, vs. CALIFORNIA DEPT. OF CORRECTIONS, et al., ORDER / Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis.1 Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, petitioner's request for leave to proceed in forma pauperis is granted. See 28 U.S.C. § 1915(a). ///// No. CIV S-10-2489 DAD P

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DAD:sj cook2489.122

"A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Here, petitioner has named the California Department of Corrections and the Board of Parole Hearings as respondents in this action. These entities, however, are not proper respondents. Rather, the warden of petitioner's current institution of incarceration is the proper respondent to this action. Accordingly, the court will dismiss the instant petition with leave to amend. See Stanley, 21 F.3d at 360. In accordance with the above, IT IS HEREBY ORDERED that: 1. The court's September 21, 2010 order (Doc. No. 4) is vacated; 2. Petitioner's September 20, 2010 request to proceed in forma pauperis (Doc. No. 5) is granted; 3. Petitioner's application for writ of habeas corpus is dismissed with leave to file an amended petition naming the proper respondent within thirty days from the date of this order; 4. Any amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and 5. The Clerk of the Court is directed to send petitioner the form for habeas corpus application. DATED: September 23, 2010.

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