SIMPSON v. UNITED STATES OF AMERICA
OPINION. Signed by Judge Noel L. Hillman on 2/13/17. (jbk, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
GILBERT DARREL SIMPSON,
Civ. No. 17-693 (NLH)
Gilbert Darrel Simpson
Federal Correctional Institution
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
HILLMAN, District Judge
Petitioner Gilbert Darrel Simpson, a prisoner confined at
the Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, files this writ of habeas corpus under 28 U.S.C. § 2241,
arguing that his sentence is unconstitutional pursuant to
Johnson v. United States, 135 S. Ct. 2551 (2015).
The filing fee for a petition for writ of habeas corpus is
Pursuant to Local Civil Rule 54.3(a), the filing fee is
required to be paid at the time the petition is presented for
Pursuant to Local Civil Rule 81.2(b), whenever a
prisoner submits a petition for writ of habeas and seeks to
proceed in forma pauperis, that petitioner must submit (a) an
affidavit setting forth information which establishes that the
petitioner is unable to pay the fees and costs of the
proceedings, and (b) a certification signed by an authorized
officer of the institution certifying (1) the amount presently
on deposit in the prisoner's prison account and, (2) the
greatest amount on deposit in the prisoners institutional
account during the six-month period prior to the date of the
If the institutional account of the petitioner
exceeds $200, the petitioner shall not be considered eligible to
proceed in forma pauperis. L. CIV. R. 81.2(c).
Here, Petitioner did not prepay the $5.00 filing fee for a
habeas petition as required by Local Civil Rule 54.3(a), nor did
Petitioner submit an application for leave to proceed in forma
Petitioner has named as Respondent the United States of
America. Petitioner is informed that, among other things, 28
U.S.C. § 2242 requires the petition for a writ of habeas corpus
to allege “the name of the person who has custody over [the
See also 28 U.S.C. § 2243 (“The writ, or order to
show cause shall be directed to the person having custody of the
“[T]hese provisions contemplate a
proceeding against some person who has the immediate custody of
the party detained, with the power to produce the body of such
party before the court or judge, that he may be liberated if no
sufficient reason is shown to the contrary.”
Wales v. Whitney,
114 U.S. 564, 574 (1885).
In accord with the statutory language and
Wales' immediate custodian rule, longstanding
practice confirms that in habeas challenges to
challenges”—the default rule is that the
proper respondent is the
warden of the
facility where the prisoner is being held, not
the United States of America or some other
remote supervisory official.
Rumsfeld v. Padilla, 542 U.S. 426, 434–436 (2004) (citations
Thus, the warden of the facility where Petitioner is
held is an indispensable party respondent, for want of whose
presence the Petition may not proceed.
See Yi, 24 F.3d at 507.
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action without
Petitioner will be granted leave to apply to re-open
Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally submitted timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
within 45 days, by either prepaying the filing fee or submitting
a complete application for leave to proceed in forma pauperis
and also submitting an amended petition with the proper
An appropriate Order will be entered.
Dated: February 13, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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