Opinion
CASE NO. 13-CV-2355-BEN (KSC)
2013-10-03
CYNTHIA MICHELLE MARQUEZ, Petitioner, v. SAN DIEGO SUPERIOR COURT, Respondent.
ORDER DENYING IN FORMA
PAUPERIS APPLICATION AND
DISMISSING CASE WITHOUT
PREJUDICE
Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, accompanied by a motion to proceed in forma pauperis.
IN FORMA PAUPERIS APPLICATION
Petitioner has filed a request to proceed in forma pauperis which reflects a $8.21 balance in her prison trust account. The filing fee associated with this type of action is $5.00. See 28 U.S.C. § 1914(a). It appears Petitioner can pay the requisite filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis, and DISMISSES the case without prejudice; Petitioner may submit a copy of this order along with the requisite fee or sufficient proof that she is unable to pay the fee no later than December 2, 3013 , to have the case reopened.
FAILURE TO NAME A PROPER RESPONDENT
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 her 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). "Typically, that person is the warden of the facility in which the petitioner is incarcerated." Id. 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).
A long standing rule in the Ninth Circuit holds "that a petitioner may not seek [a writ of] habeas corpus against the State under . . . [whose] authority . . . the petitioner is in custody. The actual person who is [the] custodian [of the petitioner] must be the respondent." Ashley v. Washington, 394 F.2d 125, 126 (9th Cir. 1968). This requirement exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the person who will produce "the body" if directed to do so by the Court. "Both the warden of a California prison and the Director of Corrections for California have the power to produce the prisoner." Ortiz-Sandoval, 81 F.3d at 895.
Here, Petitioner has incorrectly named "San Diego Superior Court" as Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Director of the California Department of Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).
FAILURE TO USE PROPER FORM
Additionally, a Petition for a Writ of Habeas Corpus must be submitted in accordance with the Local Rules of the United States District Court for the Southern District of California. See Rule 2(d), 28 U.S.C. foll. § 2254. In order to comply with the Local Rules, the petition must be submitted upon a court-approved form and in accordance with the instructions approved by the Court. Id; S.D. Cal. CivLR HC.2(b). Presently, Petitioner has not submitted an application for a writ of habeas corpus on a court-approved form.
CONCLUSION AND ORDER
Based on the forgoing, the Court DENIES Petitioner's in forma pauperis application and DISMISSES the Petition without prejudice. If Petitioner wishes to proceed with this action, she must, on or before December 2, 2013 , either pay the $5.00 filing fee or submit adequate proof she is unable to pay the fee and file a First Amended Petition which cures the defects identified above. The Clerk of Court shall send Petitioner a blank Southern District of California amended petition form along with a copy of this Order.
IT IS SO ORDERED.
____________________
HON. ROGER T. BENITEZ
United States District Judge