Love v. San Diego County Jail

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DONNY LOVE, Case No.: 3:21-cv-0358-GPC-AHG 12 Petitioner, ORDER DISMISSING CASE 13 v. WITHOUT PREJUDICE AND WITH LEAVE TO AMEND 14 SAN DIEGO COUNTY JAIL, et al., 15 Respondents. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of 18 Habeas Corpus pursuant to 28 U.S.C. § 2254. 19 FAILURE TO SATISFY THE FILING FEE REQUIREMENT 20 Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in 21 forma pauperis. Because this Court cannot proceed until Petitioner has either paid the 22 $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the 23 case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to 24 proceed with this case, he must submit, no later than May 21, 2021, a copy of this Order 25 with the $5.00 fee or with adequate proof of his inability to pay the fee. 26 FAILURE TO NAME A PROPER RESPONDENT 27 Furthermore, review of the Petition reveals that Petitioner has failed to name a 28 proper respondent. On federal habeas, a state prisoner must name the state officer having 1 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 2 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 3 when a habeas petition fails to name a proper respondent. See id. 4 The warden is the typical respondent. However, “the rules following section 2254 5 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 6 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 7 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 8 advisory committee’s note). If “a petitioner is in custody due to the state action he is 9 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 10 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 11 foll. § 2254 advisory committee’s note). 12 Here, Petitioner has incorrectly named “San Diego County Jail” as Respondent. 13 Additionally, he has also named “Julie L. Garland,” who appears to be an Assistant 14 Attorney General for the State of California and is also not a proper respondent in this 15 action. Rule 2 of the Rules following § 2254 provides that the state officer having 16 custody of the petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. 17 However, “if the applicant is not presently in custody pursuant to a state judgement 18 against which he seeks relief but may be subject to such custody in the future,” then “the 19 officer having present custody of the applicant as well as the attorney general of the state 20 in which the judgment which he seeks to attack was entered shall each be named as 21 respondents.” Rule 2 (b), 28 U.S.C. foll. § 2254. Here, based on the allegations in the 22 Petition, there is no basis for Petitioner to have named the Attorney General, who is 23 currently Xavier Becerra, as a respondent in this action, much less an Assistant Attorney 24 General. 25 In order for this Court to entertain the Petition filed in this action, Petitioner must 26 name the warden or sheriff in charge of the correctional facility in which Petitioner is 27 presently confined or the Secretary of the California Department of Corrections and 28 1 Rehabilitation. Brittingham vy. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per 2 curiam). 3 CONCLUSION 4 For the foregoing reasons, the Court DISMISSES the Petition without prejudice 5 || due to Petitioner’s failure to satisfy the filing fee requirement and failure to name a 6 || proper respondent. To have this case reopened, Petitioner must, no later than May 21, 7 2021: (1) either pay the $5.00 filing fee or provide adequate proof of his inability to pay 8 || and (2) file a First Amended Petition which cures the pleading deficiency outlined in this 9 || Order. For Petitioner’s convenience, the Clerk of Court shall attach to this Order, a 10 || blank petition form and a blank in forma pauperis application form. 11 || IT IS SO ORDERED. 12 ||Dated: March 17, 2021 <= 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28