King v. California
- Proceeding
- district
- Area
- civil
- Panel
- Michael M. Anello (author)
Analysis
The court reviewed a pro se state prisoner's petition for a writ of habeas corpus under 28 U.S.C. § 2254. The court dismissed the action without prejudice and with leave to amend because the petitioner failed to pay the filing fee or move to proceed in forma pauperis, and failed to name a proper respondent.
| What the court decided | The model |
|---|---|
Dismissal of the action without prejudice and with leave to amend“Based on the foregoing, the Court DISMISSES this action without prejudice and with leave to amend because Petitioner has failed to satisfy the filing fee requirement and failed to name a proper respondent.” | agree with court The dismissal is procedurally correct. Under 28 U.S.C. § 2254 and the accompanying rules, a petitioner must pay the filing fee or qualify for in forma pauperis status before the court can proceed. Additionally, federal habeas corpus petitions must name the immediate custodian (e.g., the warden) as the respondent, not the state itself, to establish personal jurisdiction. The court correctly identified both deficiencies and provided a deadline and forms to cure them. |
The order itself: sound — The order correctly applies the procedural requirements for federal habeas corpus petitions. It accurately cites Ninth Circuit precedent regarding the necessity of naming the immediate custodian as the respondent to establish personal jurisdiction. It also correctly enforces the filing fee requirement under 28 U.S.C. § 2254. The remedy of dismissal without prejudice with leave to amend is appropriate for these curable procedural defects.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SIMON J. KING, Case No.: 22-cv-1397-MMA (BLM) CDCR #AC2494, 12 ORDER DISMISSING PETITION Petitioner, 13 WITHOUT PREJUDICE AND WITH v. LEAVE TO AMEND 14 CALIFORNIA, 15 [Doc. No. 1] Respondent. 16 17 18 Simon J. King (“Petitioner”), a state prisoner proceeding pro se, filed a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition”). See Doc No. 1. 20 I. FAILURE TO SATISFY FILING FEE REQUIREMENT 21 Petitioner has not paid the $5.00 filing fee and has not moved to proceed in forma 22 pauperis (“IFP”). This Court cannot proceed until Petitioner has either paid the filing fee 23 or qualified to proceed IFP. The Court therefore DISMISSES the case without 24 prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this 25 case, he must, no later than November 13, 2022, either pay the $5.00 fee or submit 26 adequate proof of his inability to pay the fee. 27 II. FAILURE TO NAME A PROPER RESPONDENT 28 Review of the Petition also reveals that Petitioner has failed to name a proper 1 respondent. On federal habeas, a state prisoner must name the state officer having 2 custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 3 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction 4 when a habeas petition fails to name a proper respondent. See id. 5 The warden is the typical respondent. However, “the rules following section 2254 6 do not specify the warden.” Id. “[T]he ‘state officer having custody’ may be ‘either the 7 warden of the institution in which the petitioner is incarcerated . . . or the chief officer in 8 charge of state penal institutions.’” Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 9 advisory committee’s note). If “a petitioner is in custody due to the state action he is 10 challenging, ‘[t]he named respondent shall be the state officer who has official custody of 11 the petitioner (for example, the warden of the prison).’” Id. (quoting Rule 2, 28 U.S.C. 12 foll. § 2254 advisory committee’s note). 13 A long-standing rule in the Ninth Circuit holds “that a petitioner may not seek [a 14 writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is 15 in custody. The actual person who is [the] custodian [of the petitioner] must be the 16 respondent.” Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement 17 exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the 18 person who will produce “the body” if directed to do so by the Court. “Both the warden 19 of a California prison and the Director of Corrections for California have the power to 20 produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895. 21 Here, Petitioner has incorrectly named the state of California as Respondent. In 22 order for this Court to entertain the Petition filed in this action, Petitioner must name the 23 warden in charge of the state correctional facility in which Petitioner is presently 24 confined or the Secretary of the California Department of Corrections and Rehabilitation. 25 Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam). 26 III. CONCLUSION 27 Based on the foregoing, the Court DISMISSES this action without prejudice and 28 with leave to amend because Petitioner has failed to satisfy the filing fee requirement and | || failed to name a proper respondent. In order to have his case reopened, Petitioner must 2 ||(1) either pay the filing fee or provide adequate proof of his inability to pay, and (2) file a 3 || First Amended Petition which names a proper respondent, no later than November 13, 4 ||2022. The Court DIRECTS the Clerk of Court to send Petitioner, along with this Order, 5 blank First Amended Petition form and a blank In Forma Pauperis Application. 6 IT IS SO ORDERED. 7 ||Dated: September 16, 2022 8 Miku U uf Liles 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28