1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 Jack CABADA, Case No.: 24-cv-2311-AGS-DDL

4 Petitioner, ORDER DISMISSING HABEAS 5 v. PETITION (ECF 1)

6 DONOVAN STATE PRISON, 7 Respondent. 8 State inmate Jack Cabada, proceeding without an attorney, seeks a writ of habeas 9 corpus. But he has not paid his filing fee and did not move to be excused from paying. He 10 also failed to name a proper respondent, and his habeas claim is not cognizable. 11 Consequently, his petition is dismissed with leave to amend. 12 As a threshold matter, Cabada has neither paid the required $5.00 filing fee nor 13 moved to proceed in forma pauperis, that is, without having to pay the fee. He must do one 14 of the two. See R.3(a), Rules Governing Section 2254 Cases (2019). 15 Further, Cabada did not name a proper respondent. In federal habeas cases, a state 16 prisoner must “name the state officer having custody of him as the respondent.” Ortiz- 17 Sandoval v. Gomez,

(9th Cir. 1996) (quoting

). 18 “Typically, this person is the warden of the facility in which the petitioner is incarcerated.” 19

It may also be “the chief officer in charge of state penal institutions.”

Yet Cabada 20 named only “Donovan State Prison,” an improper respondent. (See ECF 1, at 1.) This 21 shortfall “destroys personal jurisdiction”—which this Court needs to rule on the petition. 22 See Ortiz-Sandoval,

. 23 Moreover, proper habeas claims are those that challenge “the very fact or duration 24 of the [petitioner’s] confinement” or circumstances “[w]hen a prisoner is put under 25 additional and unconstitutional restraints during his lawful custody.” Preiser v. Rodriguez, 26

(1973). Here, Cabada states only that “[t]he air condition[]ing and 27 heater. Needs to be fix. We been having trouble all year long.” (ECF 1, at 3.) Alleging 28 1 || “trouble” with prison temperature controls does not appear to be a challenge to the “fact or 2 duration” of Cabada’s confinement or to any “additional and unconstitutional restraint.” 3 || (See id.); Preiser,

. This is therefore not a cognizable habeas claim. 4 In some instances, however, courts may “construe a petition for habeas corpus to 5 ||plead a cause of action under § 1983”—which is generally the proper course for 6 || “challenge[s] to the conditions of” “prison life.” Nettles v. Grounds,

, 936 7 Cir. 2016); Preiser,

. But courts may only do so when petitioners 8 ||“‘name[] the correct defendants,” and this requires naming the party “whose acts or 9 || omissions are alleged to have caused a constitutional deprivation.” Nettles,

; 10 || Leer v. Murphy,

(9th Cir. 1988). Cabada has not named any individuals 11 |/responsible for ventilation control. Because he has not named the “correct defendants,” this 12 Court cannot construe his habeas petition as a section 1983 claim. See

13 But even if Cabada had named a proper defendant, “[1]nadequate ventilation and air 14 || flow” only “violates the Eighth Amendment if it undermines the health of inmates and the 15 || sanitation of the penitentiary.” Keenan v. Hall,

(9th Cir. 1996). Cabada 16 ||has provided no suggestion that the alleged prison ventilation “trouble” rises to that level. 17 The petition is therefore DISMISSED with leave to amend. Courts “should not 18 ||dismiss a pro se complaint without leave to amend unless it is absolutely clear that the 19 || deficiencies of the complaint could not be cured.” Rosati v. Igbinoso,

, 1039 20 || (9th Cir. 2015) (cleaned up). It is not “absolutely clear” that the complaint’s deficiencies 21 ||are beyond repair. See

So, by January 28, 2025, Cabada may amend his complaint to 22 correct the deficiencies identified in this order. Otherwise, the Court may dismiss this case. 23 || See Lira v. Herrera,

(9th Cir. 2005). 24 || Dated: December 30, 2024 25 A f 6 Andrew G. Schopler United States District Judge 27 28