United States District Court, S.D. California
October 18, 2005.
MIKE E. MITCHELL, Petitioner,
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
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).
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.
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