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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAMONTE LUCAS, Case No.: 3:16-cv-02534 GPC (NLS) Petitioner, 12 13 v. 14 ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND BONNIE DUMANIS, Warden, 15 Respondent. 16 17 18 19 20 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 21 forma pauperis. This Court cannot proceed until Petitioner has either paid the $5.00 22 filing fee or qualified to proceed in forma pauperis. See Rule 3(a), 28 U.S.C. foll. § 2254. 23 FAILURE TO NAME PROPER RESPONDENT 24 Review of the Petition reveals that Petitioner has failed to name a proper 25 respondent. On federal habeas, a state prisoner must name the state officer having 26 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 27 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 28 when a habeas petition fails to name a proper respondent. See id. 1 3:16-cv-02534 GPC (NLS) 1 The warden is the typical respondent. However, “the rules following section 2254 2 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 3 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 4 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 5 advisory committee’s note). If “a petitioner is in custody due to the state action he is 6 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 7 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 8 foll. § 2254 advisory committee’s note). 9 A long standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 10 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 11 in custody. The actual person who is [the] custodian [of the petitioner] must be the 12 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 13 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 14 person who will produce “the body” if directed to do so by the Court. “Both the warden 15 of a California prison and the Director of Corrections for California have the power to 16 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. Here, Petitioner has incorrectly named “Bonnie Dumanis, District Attorney,” as 17 18 Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner 19 must name the warden in charge of the state correctional facility in which Petitioner is 20 presently confined or the Director of the California Department of Corrections. 21 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 22 CONCLUSION 23 Accordingly, the Court DISMISSES the Petition without prejudice and with leave 24 to amend. To have this case reopened, Petitioner must file a First Amended Petition no 25 later than December 19, 2016. The Clerk of Court is directed to mail Petitioner a 26 /// 27 /// 28 /// 2 3:16-cv-02534 GPC (NLS) 1 blank motion to proceed in forma pauperis form and a blank First Amended Petition 2 form together with a copy of this Order. 3 IT IS SO ORDERED. 4 5 Dated: October 12, 2016 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:16-cv-02534 GPC (NLS)

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