United States District Court, S.D. California
August 29, 2005.
BRIAN STEVEN McNEAL, Petitioner,
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
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
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).
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.
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