Cummings v. Sacramento District Court

Full title: SHERMAN CUMMINGS, Petitioner, v. SACRAMENTO DISTRICT COURT, Respondent.

Court: United States District Court, Ninth Circuit, California, E.D. California

Date published: Oct 22, 2008

CIV S-07-2738 WBS EFB P (E.D. Cal. Oct. 22, 2008)

Opinion

SHERMAN CUMMINGS, Petitioner, v. SACRAMENTO DISTRICT COURT, Respondent. No. CIV S-07-2738 WBS EFB P. United States District Court, E.D. California. October 22, 2008

          ORDER

          EDMUND F. BRENNAN, Magistrate Judge.

         Petitioner is a state prisoner without counsel seeking a writ of habeas corpus.See 28 U.S.C. § 2254. He seeks leave to proceed in forma pauperis . See 28 U.S.C. § 1915.

         Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit.

         A petitioner seeking a writ of habeas corpus must name as respondent the person having custody over him. 28 U.S.C. § 2242; Rule 2(a), Rules Governing Section 2254 Cases. This person ordinarily is the warden of the facility where petitioner is confined.See Stanley v. California Supreme Court , 21 F.3d 359, 360 (9th Cir. 1994). Petitioner names as respondent the Sacramento District Court, which does not have custody over petitioner. Petitioner has not named the proper respondent.

         Accordingly, it is ORDERED that:

         1. Petitioner's request for leave to proceed in forma pauperis is granted; and,

         2. The December 19, 2007, petition is dismissed with leave to file an amended petition naming the proper respondent within 30 days of the date of this order. Petitioner's failure to file an amended petition will result in a recommendation that this action be dismissed without prejudice. The Clerk of the Court is directed to send to petitioner the form Petition for a Writ of Habeas Corpus used in this court.