Hunter v. Tilton

Filing 2

ORDER DISMISSING CASE without prejudice and with leave to amend due to Petitioner's failure to satisfy the filing fee requirement and name a proper respondent. To have case reopened, Petitioner must pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee and file a 1st Amended Petition by 1/12/07. Signed by Judge Irma E. Gonzalez on 11/7/06. (Blank Motion to proceed IFP form and 1st Amended Petition form mailed to Petitioner)(cag)

Hunter v. Tilton

Doc. 2

Case 3:06-cv-02414-IEG-BLM

Document 2

Filed 11/07/2006

Page 1 of 3

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 27 28 v. G.J. GIURBINO, Warden Respondent. WESLEY W. HUNTER, Petitioner, Civil No. 06-2414 IEG (BLM) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND

Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. FAILURE TO SATISFY FILING FEE REQUIREMENT Petitioner has failed to either pay the $5.00 filing fee or move to proceed in forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. FAILURE TO NAME A PROPER RESPONDENT Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having current custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id. ///
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06cv2414

Dockets.Justia.com

Case 3:06-cv-02414-IEG-BLM

Document 2

Filed 11/07/2006

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The warden is the typical respondent. However, "the rules following section 2254 do not specify the warden." Id. "[T]he `state officer having custody' may be `either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note). If "a petitioner is in custody due to the state action he is challenging, `[t]he named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee's note). A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the person who will produce "the body" if directed to do so by the Court. "Both the warden of a California prison and the Director of Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895. Here, Petitioner has incorrectly named "G..J. Giurbino," as Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Director of the California Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). CONCLUSION Accordingly, the Court DISMISSES the Petition without prejudice and with leave to amend due to Petitioner's failure to satisfy the filing fee requirement and name a proper respondent. To have this case reopened, Petitioner must no later than January 12, 2007: (1) pay the $5.00 filing fee or submit adequate proof of his inability to pay the fee, AND (2) file a First Amended Petition which cures the pleading deficiencies outlined in this Order. THE /// ///
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Case 3:06-cv-02414-IEG-BLM

Document 2

Filed 11/07/2006

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CLERK OF COURT IS DIRECTED TO MAIL PETITIONER A BLANK MOTION TO PROCEED IN FORMA PAUPERIS FORM AND A BLANK FIRST AMENDED PETITION FORM. IT IS SO ORDERED.

DATED: November 7, 2006 IRMA E. GONZALEZ, Chief Judge United States District Court

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