Martinez v. Cox

Filing 4

ORDER denying 1 Motion/Application for Leave to Proceed in forma pauperis. Petitioner shall have 30 days from date of this order to either (1) pay $5 filing fee or (2) submit fully completed application to proceed IFP. Clerk shall send to pe titioner approved form for application to proceed IFP (sent 10/17/12). Clerk shall send to petitioner two copies of this order (sent 10/17/12). If petitioner wishes to pay fee, he must make necessary arrangements to have one copy of t his order, along with fee, sent to the court. Petitioner has 30 days to file an amended caption page that names proper respondent. Clerk shall retain petition but not file it at this time. Signed by Judge Larry R. Hicks on 10/16/12. (Copies have been distributed pursuant to the NEF - JC)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF NEVADA

8
9

MIGUEL ALEJANDRO
MARTINEZ,

10
Petitioner,
11
vs.
12
JAMES GREG COX,
13
Respondent.
14

)
)
)
)
)
)
)
)
)
)
/

3:12-cv-00485-LRH-WGC
ORDER

15

Petitioner, a Nevada prisoner, has filed a motion for leave to proceed in forma pauperis (ECF

16

#1) and a petition for writ of habeas corpus (ECF #1-1). Petitioner’s application to proceed in forma

17

pauperis is incomplete, as it does not contain a financial certificate completed by an authorized prison

18

officer. The application must therefore be denied. Petitioner will be granted thirty (30) days to either

19

pay the $5.00 filing fee or submit a new, fully completed application to proceed in forma pauperis.

20

Further, petitioner has named James Greg Cox, Director of the Nevada Department of

21

Corrections, and the Attorney General of the State of Nevada as respondents on the face of his petition.

22

A petitioner must name the state officer who has custody of him or her as the respondent in a federal

23

habeas petition. Rule 2(a), Rules Governing Section 2254 Proceedings; Stanley v. California Supreme

24

Court, 21 F.3d 359, 360 (9th Cir.1994). This person typically is the warden of the facility in which the

25

petitioner is incarcerated. “Failure to name the petitioner’s custodian as a respondent deprives federal

26

courts of personal jurisdiction.”

27

respondent in his petition, the court may allow petitioner to amend his petition to name the correct

28

respondent. See id. As such, petitioner will be granted thirty days to file an amended caption page,

Stanley, 21 F.3d at 360.

If petitioner fails to name the proper

1
2
3
4

naming the proper respondent, who is the state officer who currently has custody over petitioner.
IT IS THEREFORE ORDERED that petitioner’s motion for leave to proceed in forma
pauperis (ECF #1) is DENIED.
IT IS FURTHER ORDERED that petitioner shall have thirty (30) days from the date this

5

order is entered to either (1) pay the $5.00 filing fee or (2) submit a fully completed application to

6

proceed in forma pauperis, including a financial certificate signed by an authorized prison officer

7

showing the status of petitioner’s prison account. Failure to take one of these actions within the time

8

allowed may result in dismissal of this action.

9
10

IT IS FURTHER ORDERED that the Clerk shall SEND to petitioner the approved form for
an application to proceed in forma pauperis.

11

IT IS FURTHER ORDERED that the Clerk shall SEND to petitioner two copies of this order.

12

If petitioner wishes to pay the five dollar ($5) filing fee (the first option, above), petitioner must make

13

the necessary arrangements to have one copy of this order, along with a check in the amount of the full

14

$5 filing fee, sent to the court, by sending a copy of the order with a “brass slip” to Inmate Services for

15

issuance of the check.

16

IT IS FURTHER ORDERED that petitioner has thirty (30) days from the date of entry of

17

this order to file an amended caption page that names the proper respondent.

18

expressly cautioned that failure to do so may result in the dismissal of the petition.

19
20

Petitioner is

IT IS FURTHER ORDERED that the Clerk shall retain the petition for a writ of habeas corpus
but shall not file it at this time.

21
22

DATED this 16th day of October, 2012.

23
24

___________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

25
26
27
28

2