Dixon v. Nebraska Correctional for Women

Filing 6

MEMORANDUM AND ORDER that the Petitioner is directed to correct the technical defects as listed in this order within 30 days of the date of this Memorandum and Order. The Clerk of the court is directed to send to Petitioner the Form AO241 ("Peti tion for Relief From a Conviction or Sentence By a Person in State Custody") and the Form AO240 ("Application to Proceed Without Prepayment of Fees and Affidavit"). The Clerk of the court is directed to set a pro se case management deadline in this matter with the following text: January 13, 2014: Check for MIFP or payment and amended petition or motion to substitute party. Ordered by Judge Joseph F. Bataillon. (Copies mailed as directed) (JSF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MICHALE M. DIXON,
Petitioner,
v.
NEBRASKA CORRECTIONAL
FOR WOMEN,
Respondent.

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4:13CV3204

MEMORANDUM
AND ORDER

This matter is before the court on its own motion. Petitioner provisionally filed
her Petition for Writ of Habeas Corpus (“Petition”) on December 9, 2013. (Filing No.
1.) Due to certain technical defects, the Petition cannot be further processed. To
assure further consideration of the Petition, Petitioner must correct the defects listed
below. FAILURE TO CORRECT THESE DEFECTS WILL RESULT IN
DISMISSAL OF THE PETITION.
Petitioner has failed to include the $5.00 filing fee. Petitioner has the choice
of either tendering the $5.00 fee to the Clerk of the court or submitting a request to
proceed in forma pauperis and an affidavit of poverty in support thereof. If Petitioner
chooses to do the latter, the enclosed pauper’s forms should be completed and
returned to this court.
Rule 2(a) of the Rules Governing Section 2254 Cases in the United States
District Courts states that “if the petitioner is currently in custody under a state-court
judgment, the petition must name as respondent the state officer who has custody.”
In habeas corpus challenges to present physical confinement, the default rule is that
the proper respondent is the warden of the facility where the prisoner is being held.
Rumsfeld v. Padilla, 542 U.S. 426, 434 (2005). Petitioner has named the Nebraska
Correctional Center for Women as Respondent in this matter. The Nebraska

Correctional Center for Women is not the proper respondent in this case. In order for
this matter to proceed, Petitioner must file an amended petition for writ of habeas
corpus naming the current warden of Petitioner’s place of confinement as the
respondent. In the alternative, Plaintiff may file a motion to substitute party in which
she asks the court to substitute the current warden of her present place of confinement
as the respondent.
IT IS THEREFORE ORDERED that:
1.
Petitioner is directed to correct the above-listed technical defects within
30 days of the date of this Memorandum and Order. Failure to comply with this
Memorandum and Order will result in dismissal of this matter without further notice.
2.
The Clerk of the court is directed to send to Petitioner the Form AO241
(“Petition for Relief From a Conviction or Sentence By a Person in State Custody”)
and the Form AO240 (“Application to Proceed Without Prepayment of Fees and
Affidavit”).
3.
The Clerk of the court is directed to set a pro se case management
deadline in this matter with the following text: January 13, 2014: Check for MIFP or
payment and amended petition or motion to substitute party.
DATED this 16th day of December, 2013.
BY THE COURT:
s/ Joseph F. Bataillon
United States District Judge
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