Gilbert v. California Department of CDCR

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA CHARLES TRAYZON GILBERT, Case No.: 21-CV-859-JLS-DEB 12 Petitioner, ORDER: (1) GRANTING v. APPLICATION TO PROCEED IN FORMA PAUPERIS AND CALIFORNIA DEPARTMENT (2) DISMISSING PETITION OF CORRECTIONS AND 15 WITHOUT PREJUDICE AND REHABILITATION, WITH LEAVE TO AMEND Respondent.

17 (ECF Nos. 1, 2) 19 Petitioner Charles Trayzon Gilbert, a state prisoner proceeding pro se, has submitted a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging the denial of parole. See ECF No. 1. He has also filed a request to proceed in forma pauperis. See ECF No. 2.

23 REQUEST TO PROCEED IN FORMA PAUPERIS 24 According to Petitioner’s trust account statement, Petitioner has $0.19 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 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.

3 FAILURE TO NAME A PROPER RESPONDENT 4 Review of the Petition reveals that Petitioner has failed to name a proper respondent.

5 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). Federal courts lack personal jurisdiction when a habeas petition fails to name a proper respondent. See id. 9 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).

17 A longstanding 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). This requirement exists because a writ of habeas corpus acts upon the custodian of the state prisoner, the person who will produce “the body” if directed to do so by the Court. “Both the warden of a California prison and the [Secretary] of Corrections for California have the power to produce the prisoner.” Ortiz-Sandoval, 81 F.3d at 895.

25 Here, Petitioner has incorrectly named “California Department of Corrections and Rehabilitation” as Respondent. In order for this Court to entertain the Petition filed in this action, Petitioner must name the warden in charge of the state correctional facility in which Petitioner is presently confined or the Secretary of the California Department of || Corrections and Rehabilitation. Brittingham v. United States, 982 F.2d 378, 379 (9th Cir. ||1992) (per curiam). Accordingly, the Court DISMISSES the Petition WITHOUT || PREJUDICE.

4 CONCLUSION 5 Based on the foregoing, the Court GRANTS Petitioner’s request to proceed in forma ||pauperis (ECF No. 2) and DISMISSES the Petition (ECF No. 1) WITHOUT || PREJUDICE because Petitioner has failed to name a proper respondent. To have this case reopened, Petitioner must, no later July 6, 2021, file a First Amended Petition that names ||a proper respondent. A blank First Amended Petition is included with this Order for || Petitioner’s convenience.

11 IT IS SO ORDERED.

12 ||Dated: May 5, 2021 . tt f te 13 on. Janis L. Sammartino 14 United States District Judge