Opinion
Case No.: 3:21-cv-0358-GPC-AHG
03-17-2021
DONNY LOVE, Petitioner, v. SAN DIEGO COUNTY JAIL, et al., Respondents.
ORDER DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
FAILURE TO SATISFY THE FILING FEE REQUIREMENT
Petitioner has failed to pay the $5.00 filing fee and has failed to move to proceed in forma pauperis. Because this Court cannot proceed until Petitioner has either paid the $5.00 filing fee or qualified to proceed in forma pauperis, the Court DISMISSES the case without prejudice. See Rule 3(a), 28 U.S.C. foll. § 2254. If Petitioner wishes to proceed with this case, he must submit, no later than May 21 , 2021 , a copy of this Order with the $5.00 fee or with adequate proof of his inability to pay the fee.
FAILURE TO NAME A PROPER RESPONDENT
Furthermore, review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a state prisoner must name the state officer having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id.
The warden is the typical respondent. However, "the rules following section 2254 do not specify the warden." Id. "[T]he 'state officer having custody' may be 'either the warden of the institution in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.'" Id. (quoting Rule 2(a), 28 U.S.C. foll. § 2254 advisory committee's note). If "a petitioner is in custody due to the state action he is challenging, '[t]he named respondent shall be the state officer who has official custody of the petitioner (for example, the warden of the prison).'" Id. (quoting Rule 2, 28 U.S.C. foll. § 2254 advisory committee's note).
Here, Petitioner has incorrectly named "San Diego County Jail" as Respondent. Additionally, he has also named "Julie L. Garland," who appears to be an Assistant Attorney General for the State of California and is also not a proper respondent in this action. Rule 2 of the Rules following § 2254 provides that the state officer having custody of the petitioner shall be named as respondent. Rule 2(a), 28 U.S.C. foll. § 2254. However, "if the applicant is not presently in custody pursuant to a state judgement against which he seeks relief but may be subject to such custody in the future," then "the officer having present custody of the applicant as well as the attorney general of the state in which the judgment which he seeks to attack was entered shall each be named as respondents." Rule 2 (b), 28 U.S.C. foll. § 2254. Here, based on the allegations in the Petition, there is no basis for Petitioner to have named the Attorney General, who is currently Xavier Becerra, as a respondent in this action, much less an Assistant Attorney General.
In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden or sheriff in charge of the correctional facility in which Petitioner is presently confined or the Secretary of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
CONCLUSION
For the foregoing reasons, the Court DISMISSES the Petition without prejudice due to Petitioner's failure to satisfy the filing fee requirement and failure to name a proper respondent. To have this case reopened, Petitioner must, no later than May 21 , 2021 : (1) either pay the $5.00 filing fee or provide adequate proof of his inability to pay and (2) file a First Amended Petition which cures the pleading deficiency outlined in this Order. For Petitioner's convenience, the Clerk of Court shall attach to this Order, a blank petition form and a blank in forma pauperis application form.
IT IS SO ORDERED.
Dated: March 17, 2021
/s/_________
Hon. Gonzalo P. Curiel
United States District Judge