Powell v. State of Iowa et al

Filing 2

ORDER re 1 Petition for Writ of Habeas Corpus filed by Jayme Ryan Powell. Mr. Powell shall either submit the $5 filing fee or file a proper in forma pauperis application within 30 days. The Clerk of Court is instructed to send this Order to M r. Powell forthwith, along with the appropriate forms for filing a Section 1983 case. If Mr. Powell does not submit the $5 filing fee or submit a proper in forma pauperis application within 30 days, the Clerk of Court shall dismiss his complaint without prejudice. The State of Iowa is dismissed as a Defendant from this case. Signed by Senior Judge Donald E O'Brien on 2/14/13. (copy w/nef and Section 1983 forms mailed to pro se petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
JAYME RYAN POWELL,
Plaintiff,

No. 13-CV-4020-DEO

vs.

ORDER

JIM MCKINNEY AND THE STATE
OF IOWA
Defendants.
____________________
Mr. Powell is currently incarcerated at the Fort Dodge
Correctional Facility pursuant to a conviction for first and
second degree robbery. Docket #1, Powell v. State, 820 N.W.2d
159 (Iowa Ct. App. 2012).

On February 13, 2013, Mr. Powell

filed a pro se petition under 28 U.S.C. § 2254 for Writ of
Habeas Corpus.
I.

Docket # 1.

FILING FEE
The filing fee for a Writ of Habeas Corpus is $5.

U.S.C. § 1914(a).

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Mr. Powell did not pay the $5.00 fee. Nor

did his initial petition include an application to proceed in
forma

pauperis.

Mr.

Powell

has

also

failed

to

file

application for the appointment of counsel.
An application to proceed in forma pauperis requires an
affidavit stating: (1) all the assets the prisoner possesses,
(2) an inability to pay court fees or provide any security
therefor, (3) nature of the action, defense, or appeal, and

(4) affiant’s belief that they are entitled to redress.
U.S.C. § 1915(a)(1).

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Prisoners must also meet an additional

requirement; they must submit a certified copy of their
prisoner trust fund account statement for a 6-month period
prior to the filing of the complaint. 28 U.S.C. § 1915(a)(2).
The Court will allow Mr. Powell thirty days to either pay
the filing fee or file an application to proceed in forma
pauperis.

If Mr. Powell does not pay the fee or file an

application to proceed in forma pauperis, the Clerk of Court
shall dismiss this case.
Mr. Powell is also free to file an application for the
appointment of counsel under 28 U.S.C. § 2254(h) along with
application to proceed in forma pauperis.
II.

STATE OF IOWA
The Court notes that Mr. Powell has incorrectly named the

State of Iowa as the Respondent in this case.

28 U.S.C. §

2243 makes clear that the proper respondent in a federal
habeas corpus action is “the person having custody of the
person

detained.”

See

also

28

U.S.C.

§

2242

(stating

application shall allege the name of the person who has
custody over her).

Mr. Powell has also filed this case

against Jim McKinney, the Warden of the Ft. Dodge Correctional

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Facility, who is the appropriate defendant in a Habeas action.
Accordingly,

the

State

of

Iowa

shall

be

dismissed

as

a

defendant in this case.
III.

CONCLUSION
Mr. Powell shall either submit the $5 filing fee or file

a proper in forma pauperis application within 30 days.

As

noted above, a proper in forma pauperis application requires:
(1) an affidavit1 specifically stating all the assets the
prisoner possesses, an inability to pay court fees or provide
any

security

therefor,

the

nature

of

the

action,

and

affiant’s belief that they are entitled to relief; and (2) a
prison account statement covering a 6-month period immediately
prior to the filing of the complaint and indicating the
average monthly deposits to or the average monthly balance of
the account.

The Clerk of Court is instructed to send this

Order to Mr. Powell forthwith, along with the appropriate
forms for filing a Section 1983 case.

If Mr. Powell does not

submit the $5 filing fee or submit a proper in forma pauperis
application within 30 days, the Clerk of Court shall dismiss

1

An affidavit is a “declaration of facts written down and
sworn to by the declarant before an officer authorized to
administer oaths . . . .” Black’s Law Dictionary, 62 (8th ed.
2009).
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his complaint without prejudice. Finally, for the reasons set
out above, the State of Iowa is dismissed as a Defendant from
this case.
IT IS SO ORDERED this 14th day of February, 2013.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

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