Arnold v. Director of Corrections-Rehabilitation

Filing 2

ORDER DISMISSING CASE without prejudice and with leave to amend. To have case re-opened, Petitioner must file a First Amended Petition no later than 10/08/07 and a copy of this Order with the $5.00 fee or adequate proof of his inability to pay the fee. Blank IFP and First Amended Petition sent to Petitioner. Signed by Judge Larry Alan Burns on 8/9/07. (vrp)

Arnold v. Director of Corrections-Rehabilitation

Doc. 2

Case 3:07-cv-01400-LAB-POR

Document 2

Filed 08/09/2007

Page 1 of 2

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. DIRECTOR OF CORRECTIONSREHABILITATION Respondent. P etitio n er, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas C o r p u s pursuant to 28 U.S.C. § 2254. F A IL U R E TO SATISFY FILING FEE REQUIREMENT P e t i ti o n e r has failed to pay the $5.00 filing fee and has failed to move to proceed in forma p a u p e r i s . Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee o r qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. S e e Rule 3(a), 28 U.S.C. foll. § 2254. FAILURE TO NAME PROPER RESPONDENT R e v i e w of the Petition reveals that Petitioner has failed to name a proper respondent. On f e d e r a l habeas, a state prisoner must name the state officer having custody of him as the respo nden t. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S .C . foll. § 2254). The warden is the typical respondent. However, "the rules following s e c t io n 2254 do not specify the warden." Id. "[T]he `state officer having custody' may be
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RICHAR D ALLEN ARNOLD, Petitioner,

Civil No.

07cv1400 LAB (POR)

ORDER DISMISSING CASE WITHOUT PREJUDICE

-1Dockets.Justia.com

Case 3:07-cv-01400-LAB-POR

Document 2

Filed 08/09/2007

Page 2 of 2

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` e i th e r 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 comm ittee's note). If "a petitioner is in custody due to the state action he is challenging, `[t]he n a m e d respondent shall be the state officer who has official custody of the petitioner (for e x a m p le , the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory comm ittee's note). H e r e , Petitioner has incorrectly named "Director of Corrections- Rehabilitation," as Res pon dent. In order for this Court to entertain the Petition filed in this action, Petitioner must n a m e the warden in charge of the state correctional facility in which Petitioner is presently c o n f i n e d or James E. Tilton, the Director of the California Department of Corrections. B r i t ti n g h am v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). Therefore, the Co urt DISMISSES the Petition without prejudice and with leave to amend. CONCLUSION AND ORDER F o r the foregoing reasons, the Court DISMISSES the Petition without prejudice due to Petitio n er's failure to (1) either pay the $5 filing fee or move to proceed in forma pauperis, and ( 2 ) name a proper respondent. To have this case reopened, Petitioner must file a First Amended P e t i ti o n, no later than October 8, 2007, that cures the pleading deficiencies noted in this Order, A N D a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the f e e . The Clerk of Court is directed to send Petitioner a blank motion to proceed in forma pauperis form and First Amended Petition form Petitioner's convenience .

I T IS SO ORDERED.

D A T E D : August 9, 2007

H ONORABLE LARRY ALAN BURNS U n i t e d States District Judge

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