Herrera v. Bryson

Full title: ARMANDO HERRERA, Petitioner, v. S. BRYSON, et al., Respondents

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

Date published: Feb 20, 2008

No. CIV S 08-0236 FCD DAD P (E.D. Cal. Feb. 20, 2008)

Opinion

No. CIV S 08-0236 FCD DAD P.

February 20, 2008

ORDER

DALE DROZD, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ¹, together with an application to proceed in forma pauperis.

1 Although petitioner has commenced this action by filing a civil rights complaint pursuant to 42 U.S.C. § 1983, the court has construed that complaint as a petition for a writ of habeas corpus because therein plaintiff alleges that he was improperly denied parole and seeks an order from the court granting him a parole date. Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (a habeas corpus proceeding is the proper mechanism for a prisoner seeking to challenge the fact or duration of his confinement).

Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted.See 28 U.S.C. § 1915(a).

"A petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254). Petitioner has named Commissioner S. Bryson, Deputy Commissioner J. Thompson, and the Board of Prison Terms as respondents in this action. These individuals are not the proper respondents in this action. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360. In his amended petition, petitioner must name as the respondent the warden of the facility where he is incarcerated.

In accordance with the above, IT IS HEREBY ORDERED that:

1. Petitioner's request to proceed in forma pauperis is granted;

2. Petitioner's application for writ of habeas corpus is dismissed with leave to file an amended petition within thirty days from the date of this order;

3. Any amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition"; and

4. The Clerk of the Court is directed to send petitioner the form for habeas corpus application.