LEWIN v. STATE OF NEW JERSEY et al

Filing 2

OPINION. Signed by Judge Noel L. Hillman on 2/9/2018. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
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Petitioner,
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v.
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STATE OF NEW JERSEY, COUNTY
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OF CAPE MAY, and CAPE MAY
:
SEHRIFF’S OFFICE,
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Respondents.
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______________________________:
DEAN ANTHONY LEWIN,

Civ. No. 18-953 (NLH)
OPINION

APPEARANCE:
Dean Anthony Lewin, #48572
Cape May County Correctional Center
4 Moore Road
Cape May Court House, NJ 08210
Petitioner Pro se
HILLMAN, District Judge
Petitioner Dean Anthony Lewin, a pretrial detainee confined
in the Cape May County Correctional Center in Cape May Court
House, New Jersey, at the time of filing, seeks to bring a
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241
without prepayment of fees or security or an application to
proceed in forma pauperis.
Filing Fee
The filing fee for a petition for writ of habeas corpus is
$5.00.

Pursuant to Local Civil Rule 54.3(a), the filing fee is

required to be paid at the time the petition is presented for

filing.

Pursuant to Local Civil Rule 81.2(b), whenever a

prisoner submits a petition for writ of habeas corpus 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 prisoner’s institutional
account during the six-month period prior to the date of the
certification.

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
pauperis.
Proper Respondent
Petitioner has named as Respondents the State of New
Jersey, the County of Cape May, and the Cape May County
Sheriff’s Office.

Petitioner is hereby notified that, among

other things, 28 U.S.C. § 2241 requires the petition for a writ
of habeas corpus to allege “the name of the person who has
custody over [the petitioner].”

See also 28 U.S.C. § 2243 (“The
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writ, or order to show cause shall be directed to the person
having custody of the person detained.”).

“[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 a 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 the habeas challenges to present
physical confinement--“core 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, 434-36 (2004) (citations
omitted).

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 v. Maugans, 24

F.3d 500, 507 (3d Cir. 1994).
Conclusion
For the reasons set forth above, the Clerk of Court will be
ordered to administratively terminate this action without
prejudice. 1

Petitioner will be granted leave to apply to re-open

1

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
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within forty-five (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 respondent.

An appropriate Order will be entered.

Dated: February 9, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

(1988) (prisoner mailbox rule); Papotto v. Hartford Life & Acc.
Ins. Co., 731 F.3d 265, 275-76 (3d Cir. 2013) (collecting cases
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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