Jones v. Board of Prison Terms

Full title: KENNETH JONES, Petitioner, v. BOARD OF PRISON TERMS, Respondent

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

Date published: Jan 17, 2008

No. CIV S-07-2173 MCE JFM P (E.D. Cal. Jan. 17, 2008)

Opinion

No. CIV S-07-2173 MCE JFM P.

January 17, 2008

ORDER

JOHN MOULDS, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with a request for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Petitioner has not, however, filed his application for leave to proceed in forma pauperis on the form used by this district. Use of the form assists petitioner to establish and the court to evaluate petitioner's in forma pauperis status in light of 28 U.S.C. § 1915(b)(1) and (2). Accordingly, petitioner's application will be dismissed and plaintiff will be provided the opportunity to submit the application on the appropriate form. Petitioner is cautioned that he must also provide a certified copy of his prison trust account statement for the six month period immediately preceding the filing of his complaint.

"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 the California Department of Corrections and the Board of Prison Terms as respondents in this action. These agencies are not the proper respondent in this action. Accordingly, the instant petition must be dismissed with leave to amend. See Stanley, 21 F.3d at 360.

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

1. Petitioner's application to proceed in forma pauperis is dismissed without prejudice;

2. The Clerk of the Court is directed to send plaintiff a new Application to Proceed In Forma Pauperis By a Prisoner; and

3. Petitioner shall submit, within thirty days from the date of this order, a completed application to proceed in forma pauperis. Petitioner's failure to comply with this order will result in a recommendation that this action be dismissed without prejudice.

4. 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.

5. 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."

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