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Larry F. Durden v. Unknown

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


April 17, 2012

LARRY F. DURDEN, PETITIONER,
v.
UNKNOWN, RESPONDENT.

ORDER

On March 8, 2012, after he had initiated this action by filing a letter and an affidavit with the court, petitioner was ordered to file a petition for writ of habeas corpus that complies with the requirements of the Rules Governing Section 2254 Cases, the Federal Rules of Civil Procedure, and the Local Rules of Practice. The court also ordered petitioner to submit the application to proceed in forma pauperis on the form provided by the Clerk of Court or the filing fee in the amount of $5.00.

In response to the court's order, on March 19, 2012, petitioner filed a petition for writ of habeas corpus on the form provided by the court. Although petitioner has now filed a petition for writ of habeas corpus, "[a] petitioner for habeas corpus relief must name the state officer having custody of him or her as the respondent to the petition." Stanley v. California Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994) (citing Rule 2(a), 28 U.S.C. foll. § 2254).

Here, petitioner has named the El Dorado County Superior Court as the respondent in this action. Petitioner is advised that the El Dorado County Superior Court is not the proper respondent. Accordingly, the court will grant petitioner thirty days leave to file an amended petition naming the proper respondent. Petitioner is advised that the proper respondent in the usual habeas action is the warden of the institution where the petitioner is currently incarcerated. See Stanley, 21 F.3d at 360.

In addition, petitioner has not submitted the application to proceed in forma pauperis on the form provided by the Clerk of Court or the filing fee in the amount of $5.00. In the interest of justice, the court will provide petitioner a second opportunity to comply with the court's order.

Accordingly, IT IS HEREBY ORDERED that:

1. Petitioner shall file an amended petition within thirty days of the date of service of this order;

2. Any amended petition must be filed on the form employed by this court, must name the proper respondent, and must state all claims and prayers for relief on the form. It must bear the case number assigned to this action and must bear the title "Amended Petition";

3. Petitioner shall submit the application to proceed in forma pauperis on the form provided by the Clerk of Court or the filing fee in the amount of $5.00 within thirty days of the date of service of this order;

4. Failure to comply with this order or seek an extension of time to do so will result in dismissal of this action; and

5. The Clerk of the Court is directed to send petitioner the court's form for filing a petition for writ of habeas corpus and the application to proceed in forma pauperis by a prisoner.

DAD:9 durd2480.122

20120417

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