Opinion
NO. 3-03-CV-2581-G
January 20, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Roger Eugene Higgins, Jr., appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed for want of prosecution.
I.
On August 28, 2003, petitioner filed an application for writ of habeas corpus seeking credit on his sentence for street time while out on parole and good time credits earned prior to his release, In order to determine whether he had exhausted his state remedies, the court sent a written questionnaire to petitioner at the address listed in his habeas petition on November 10, 2003. See Spears v. McCotter, 766 F.2d 179, 181 (5th Cir. 1985). Petitioner was admonished that the failure to answer the questionnaire within 20 days "may result in the dismissal of the complaint for failure to prosecute pursuant to Fed.R.Civ.P. 41(b)." No answers were received. By order dated December 12, 2003, petitioner was again instructed to answer the questionnaire within 20 days or the case would be dismissed. To date, the questionnaire remains unanswered. The court now concludes that this case should be dismissed for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.
II.
A district court has authority to dismiss a case for failure to comply with a court order. FED. R. Civ. P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be fufile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
The court sent a written questionnaire to petitioner over two months ago. To date, he has not answered the questions asked despite repeated warnings that his failure to do so would result in the dismissal of the case. By these questions, the court seeks to ascertain if petitioner has exhausted his state remedies. Without this information, the court cannot screen the habeas petition and determine whether process should be issued to the respondent. Dismissal is clearly warranted under these circumstances.
The questionnaire asks petitioner whether he raised his sentence credit claim in a dispute resolution proceeding brought under section 501.0081 of the Texas Government Code or in an application for state post-conviction relief pursuant to article 11.07 of the Texas Code of Criminal Procedure. See MAG. JUDGE QUESTIONNAIRE, 11/10/03.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.