United States District Court, E.D. CaliforniaMar 7, 2007
No. CIV S-06-1955-GEB-CMK-P (E.D. Cal. Mar. 7, 2007)

No. CIV S-06-1955-GEB-CMK-P.

March 7, 2007


CRAIG KELLISON, Magistrate Judge

Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On December 7, 2006, the court dismissed petitioner's amended petition with leave to amend and directed petitioner to file a further amended petition within 30 days. Petitioner was warned that failure to comply could result in dismissal of the action. That order was served on petitioner's address of record and returned by the postal service. Petitioner failed to comply and, on January 30, 2007, the court issued findings and recommendations that this case be dismissed for lack of prosecution and failure to comply with court rules and orders.

The original petition and amended petition were dismissed because petitioner did not name the proper respondent. Petitioner was advised on both occasions that the proper respondent is the person having custody over him. In this case, petitioner was instructed that the proper respondent is the warden at his prison.

On February 12, 2007, petitioner filed objections to the findings and recommendations. In his objections, petitioner mentions that he has been on psychiatric medications which have caused "break downs." He also states that he has enemies in prison who force him to "throw away all my legal work, on 4 different cases. . . ." To the extent petitioner seeks additional time to file an amended petition which names the proper respondent, the court will vacate the January 30, 2007, findings and recommendations and provide petitioner with one additional opportunity to comply.

Petitioner is again cautioned that failure to file an amended petition within the time provided by this order may result in dismissal of the entire case. See Local Rule 11-110.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations issued on January 30, 2007, are vacated; and

2. Within 30 of the date of this order, petitioner shall file an amended petition which names as the respondent the warden of his prison (Pelican Bay State Prison).