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McNEAL v. KIRKMAN

United States District Court, S.D. California


August 29, 2005.

BRIAN STEVEN McNEAL, Petitioner,
v.
K. MICHAEL KIRKMAN, et. al., Respondents.

The opinion of the court was delivered by: NAPOLEON JONES, District Judge

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND DISMISSING PETITION WITHOUT PREJUDICE
Petitioner Brian Steven McNeal, proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. §§ 1333, 1441-47, 1651, and the "War Powers Act of 1933,"*fn1 along with a request to proceed in forma pauperis. MOTION TO PROCEED IN FORMA PAUPERIS

A review of Petitioner's application to proceed in forma pauperis reveals that Petitioner cannot afford the $5.00 filing fee. Thus, the Court GRANTS Petitioner's application to proceed in forma pauperis, and allows Petitioner to prosecute the above-referenced action as a poor person without being required to prepay fees or costs and without being required to post security.

  FAILURE TO NAME A PROPER RESPONDENT

  Review of the Petition reveals that Petitioner has failed to name a proper respondent. On federal habeas, a petitioner 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).

  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). Here, Petitioner has incorrectly named as Respondents "K. Michael Kirkman, a County Employee,*fn2 George W. Bush, High Admiral, Alberto Gonzalez, [United States] Attorney General, and Bill Lockyer, Attorney General for the State of California." (Pet. at 1.) In order for this Court to entertain the Petition filed in this action, Petitioner must name the person in charge of the state facility in which Petitioner is presently confined. See Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992).

  CONCLUSION

  Accordingly, the Court GRANTS Petitioner's application to proceed in forma pauperis and DISMISSES the Petition without prejudice and with leave to amend for failure to name a proper respondent. To have this case reopened, Petitioner must, no later than October 30, 2005, file an amended petition which names a proper respondent.

  IT IS SO ORDERED.

20050829

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