Hernandez v. Clayton et al

Filing 5

ORDER: (1) Denying 2 Request to Proceed In Forma Pauperis; and (2) Dismissing Case Without Prejudice. To have this case reopened, Petitioner must, no later than 12/9/2016, (1) pay the filing fee or provide adequate proof of his inability to pay and (2) file a First Amended Petition. Signed by Judge Anthony J. Battaglia on 10/7/2016. (All non-registered users served via U.S. Mail Service; First Amended Petition mailed to Petitioner)(dls)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LARRY HERNANDEZ,

Case No.: 16cv2460 AJB (JMA)
Petitioner,

v.

ORDER:
(1) DENYING REQUEST TO
PROCEED IN FORMA PAUPERIS
and

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JAIME CLAYTON, Chief,
Respondent.

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(2) DISMISSING CASE WITHOUT
PREJUDICE

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Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of
Habeas Corpus pursuant to 28 U.S.C. § 2254 along with a request to proceed in forma
pauperis.
REQUEST TO PROCEED IN FORMA PAUPERIS

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Petitioner’s Prison Certificate reflects a $26.90 balance in his prison trust account.
The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a). It
appears Petitioner can pay the requisite filing fee. Accordingly, the Court DENIES the
request to proceed in forma pauperis, and DISMISSES the case without prejudice.
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16cv2460 AJB (JMA)

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FAILURE TO NAME A PROPER RESPONDENT

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Furthermore, review of the Petition reveals that Petitioner has failed to name a

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proper respondent. On federal habeas, a state prisoner must name the state officer having

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custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir.

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1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction

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when a habeas petition fails to name a proper respondent. See id.

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The warden is the typical respondent. However, “the rules following section 2254

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do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the

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warden of the institution in which the petitioner is incarcerated . . . or the chief officer in

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charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254

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advisory committee’s note). If “a petitioner is in custody due to the state action he is

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challenging, ‘[t]he named respondent shall be the state officer who has official custody of

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the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C.

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foll. § 2254 advisory committee’s note).

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Here, Petitioner, who appears to be currently confined in the Imperial County Jail,

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has incorrectly named “Jaime Clayton, Chief,” as Respondent. Additionally, Kamala

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Harris, the Attorney General of the State of California, is not a proper respondent in this

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action. Rule 2 of the Rules following § 2254 provides that the state officer having

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custody of the petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254.

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However, “if the applicant is not presently in custody pursuant to a state judgment against

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which he seeks relief but may be subject to such custody in the future,” then “the officer

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having present custody of the applicant as well as the attorney general of the state in

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which the judgment which he seeks to attack was entered shall each be named as

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respondents.” Rule 2 (b), 28 U.S.C. foll. § 2254. Here, there is no basis for Petitioner to

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have named the Attorney General as a respondent in this action.

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In order for this Court to entertain the Petition filed in this action, Petitioner must

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name the warden or County Sheriff in charge of the correctional facility in which

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Petitioner is presently confined or the Secretary of the California Department of
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16cv2460 AJB (JMA)

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Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir.

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1992) (per curiam).

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CONCLUSION

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Based on the foregoing, the Court DENIES Petitioner’s request to proceed in

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forma pauperis and DISMISSES this action without prejudice. To have this case

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reopened, Petitioner must, no later December 9, 2016, (1) pay the filing fee or provide

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adequate proof of his inability to pay and (2) file a First Amended Petition that cures the

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pleading deficiency set forth above. A blank First Amended Petition is included with this

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Order for Petitioner’s convenience.

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IT IS SO ORDERED.
Dated: October 7, 2016

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16cv2460 AJB (JMA)