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Derelle Anthony Oliver v. Matthew Cate

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


October 1, 2012

DERELLE ANTHONY OLIVER, PETITIONER,
v.
MATTHEW CATE, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge

ORDER:

(1) GRANTING APPLICATION TO PROCEED IN FORMA PAUPERIS, and RESPONDENT [Doc. No. 4]

(2) SUA SPONTE SUBSTITUTING

On July 5, 2012, Petitioner, a state prisoner proceeding pro se, submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. By Order dated July 23, 2012, the Court dismissed the case without prejudice and with leave to amend for Petitioner's failure to satisfy the filing fee requirement, name a proper respondent, and state a cognizable federal claim. To proceed with the case, Petitioner was advised that he had to either pay the $5 filing fee or submit adequate proof of his inability to pay the fee, and file a First Amended Petition which cured the noted pleading deficiencies, no later than September 25, 2012. On September 24, 2012, Petitioner filed a First Amended Petition, and on September 27, 2012, Petitioner filed a Motion fro Leave to Proceed In Forma Pauperis.

APPLICATION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

According to his prison trust fund account statement, Petitioner has $0.00 on account at the California correctional institution in which he is presently confined. 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. The Clerk of the Court shall file the Petition for Writ of Habeas Corpus without prepayment of the filing fee.

SUBSTITUTION OF RESPONDENT

Petitioner is currently confined at California Institution for Men and has named B.M. Cash, Warden, as Respondent. According to the official California Department of Corrections and Rehabilitation ("CDCR") website, Gary S. Sandor is the Warden of California State Prison, Corcoran, not B. M. Cash, as named by Petitioner. See Daniels-Hall v. Nat'l Educ. Ass'n., 629

F.3d 992, 998-99 (9th Cir. 2010) (taking judicial notice of information posted on government website, the accuracy of which was undisputed). Because the possibility exists that the Warden of California Institution for Men has changed since Petitioner submitted his Petition and the information on the CDCR website reflects that change, and because under a liberal construction of the petition it appears Petitioner has named the Warden by his or her official title, and in order to conform with the requirements of Rule 2(a) of the Rules Governing § 2254 Cases and avoid changing the Respondent again if Petitioner is transferred to another prison or paroled, the Court hereby sua sponte ORDERS the substitution of Matthew Cate, Secretary of the California Department of Corrections and Rehabilitation, as Respondent in place of "B. M. Cash." See Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (stating that the respondent in § 2254 proceedings may be the chief officer in charge of state penal institutions); Fed.R.Civ.P.25(d).

CONCLUSION AND ORDER

For the foregoing reasons, the Court GRANTS Petitioner's Motion to Proceed In Forma Pauperis, and sua sponte ORDERS the substitution of Matthew Cate, in place of B.M. Cash, as respondent. The Clerk of the Court shall modify the docket to reflect "Matthew Cate, Secretary" as respondent in place of "B. M. Cash."

IT IS SO ORDERED.

20121001

© 1992-2012 VersusLaw Inc.



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