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MITCHELL v. STATE

United States District Court, S.D. California


October 18, 2005.

MIKE E. MITCHELL, Petitioner,
v.
STATE OF CALIFORNIA, Respondent.

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

ORDER DENYING IN FORMA PAUPERIS APPLICATION AND DISMISSING CASE WITHOUT PREJUDICE AND WITH LEAVE TO AMEND
Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a).*fn1

REQUEST TO PROCEED IN FORMA PAUPERIS

  The request to proceed in forma pauperis is denied because Petitioner has not provided the Court with sufficient information to determine Petitioner's financial status. A request to proceed in forma pauperis made by a state prisoner must include a certificate from the warden or other appropriate officer showing the amount of money or securities Petitioner has on account in the institution. Rule 3(a)(2), 28 U.S.C. foll. § 2254; Local Rule 3.2. Petitioner has failed to provide the Court with the required Prison Certificate. Moreover, Petitioner indicates he has $77.00 in his prison trust account. Thus, it appears Petitioner can afford the $5.00 filing fee. Accordingly, the Court DENIES the request to proceed in forma pauperis, and DISMISSES the case without prejudice.

  FAILURE TO NAME PROPER RESPONDENT

  In addition, 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 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). "The `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).

  Here, Petitioner incorrectly named the "State of California" as Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden currently in charge of the state correctional facility in which Petitioner is presently confined or the Director of the California Department of Corrections. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. 1992) (per curiam).

  CONCLUSION

  The Court therefore DENIES the request to proceed in forma pauperis, and DISMISSES the case without prejudice and with leave to amend. To have the case reopened, Petitioner must, no later than December 19, 2005, (1) pay the $5.00 filing fee or provide adequate proof that Petitioner cannot pay the $5.00 filing fee and (2) file a First Amended Petition which cures the pleading deficiency outlined above.*fn2

  IT IS SO ORDERED.

20051018

© 1992-2005 VersusLaw Inc.



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