Lucas v. Dumannis

Filing 2

ORDER DISMISSING CASE Without Prejudice and With Leave to Amend. To have this case reopened, Petitioner must file a First Amended Petition no later than December 19, 2016. Signed by Judge Gonzalo P. Curiel on 10/12/16.(All non-registered users served via U.S. Mail Service)(Blank IFP and First Amended Petition sent to Petitioner. dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAMONTE LUCAS,

Case No.: 3:16-cv-02534 GPC (NLS)
Petitioner,

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v.

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ORDER DISMISSING CASE
WITHOUT PREJUDICE AND WITH
LEAVE TO AMEND

BONNIE DUMANIS, Warden,

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Respondent.

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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.
FAILURE TO SATISFY FILING FEE REQUIREMENT
Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in

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forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00

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filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254.

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FAILURE TO NAME PROPER RESPONDENT

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Review of the Petition reveals that Petitioner has failed to name a proper

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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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A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a

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writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is

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in custody. The actual person who is [the] custodian [of the petitioner] must be the

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respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement

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exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the

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person who will produce “the body” if directed to do so by the Court. “Both the warden

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of a California prison and the Director of Corrections for California have the power to

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produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.
Here, Petitioner has incorrectly named “Bonnie Dumanis, District Attorney,” as

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

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must name the warden in charge of the state correctional facility in which Petitioner is

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presently confined or the Director of the California Department of Corrections.

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Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

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CONCLUSION

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Accordingly, the Court DISMISSES the Petition without prejudice and with leave

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to amend. To have this case reopened, Petitioner must file a First Amended Petition no

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later than December 19, 2016. The Clerk of Court is directed to mail Petitioner a

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///

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3:16-cv-02534 GPC (NLS)

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blank motion to proceed in forma pauperis form and a blank First Amended Petition

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form together with a copy of this Order.

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IT IS SO ORDERED.

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Dated: October 12, 2016

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3:16-cv-02534 GPC (NLS)