LEWIN v. CAPE MAY CO. CORRECTIONAL FACILITY et al
OPINION. Signed by Judge Noel L. Hillman on 2/9/2018. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAPE MAY COUNTY CORRECTIONAL :
FACILITY, STATE OF NEW
JERSEY, COUNTY OF CAPE MAY,
and CAPE MAY SHERIFF’S OFFICE,:
DEAN ANTHONY LEWIN,
Civ. No. 18-998 (NLH)
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.
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 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
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 Respondents the Cape May County
Correctional Facility, the State of New Jersey, the County of
Cape May, and the Cape May County Sheriff’s Office.
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].”
also 28 U.S.C. § 2243 (“The writ, or order to show cause shall
be directed to the person having custody of the person
“[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
Rumsfeld v. Padilla, 542 U.S. 426, 434-36 (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 v. Maugans, 24
F.3d 500, 507 (3d Cir. 1994).
For the reasons set forth above, the Clerk of 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
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
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.
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
and explaining that a District Court retains jurisdiction over,
and can re-open, administratively closed cases).
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