Opinion
21-CV-2018 (ECT/KMM)
10-13-2021
Emmitt Fraley, Petitioner, v. B. Birkholz, Warden of Federal Prison Camp Duluth, and Michael Carvajal, Director of the Federal Bureau of Prisons, in their official capacities, Respondents.
REPORT AND RECOMMENDATION
Katherine Menendez United States Magistrate Judge
In a letter dated September 13, 2021, the Clerk of Court instructed petitioner Emmitt Fraley that he would be required to either submit the $5.00 filing fee for this habeas corpus matter or apply for in forma pauperis (“IFP”) status within 15 days, failing which this action may be dismissed without prejudice for failure to prosecute. See ECF No. 3. That deadline has now passed, and Mr. Fraley has not paid the filing fee for this matter or applied for IFP status. In fact, Mr. Fraley has not communicated with the Court about this case at all since commencing this action. Accordingly, this Court now recommends, in accordance with the warning to Mr. Fraley from the Clerk of Court, that this action be dismissed without prejudice under Rule 41(b) for failure to prosecute. See Henderson v. Renaissance Grand Hotel, 267 Fed. App'x 496, 497 (8th Cir. 2008) (per curiam) (“A district court has discretion to 1 dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order.”).
RECOMMENDATION
Based upon the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that this action be DISMISSED WITHOUT PREJUDICE under Fed.R.Civ.P. 41(b) for failure to prosecute. 2