Opinion
21-CV-2028 (ECT/ECW)
10-20-2021
Sean McNerthney, Petitioner, v. Ramsey County, Respondent.
REPORT AND RECOMMENDATION
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE
In an order dated September 21, 2021, this Court noted that the petition for a writ of habeas corpus filed by petitioner Sean McNerthney appeared to be moot, as the statecourt proceedings and detention challenging in the habeas petition ended shortly after the petition was filed. See Dkt. No. 6. McNerthney was given until October 12, 2021, to show cause why this matter should not be dismissed due to mootness, failing which it would be recommended that this action be dismissed without prejudice both for mootness and for failure to prosecute. See id. (citing Fed.R.Civ.P. 41(b)).
That deadline has now passed, and McNerthney has not responded to this Court's order to show cause. In fact, McNerthney has not communicated with the Court about this case at all since commencing this action. By all indications, McNerthney no longer has any interest in prosecuting this matter, most likely because there is no longer any live issue in dispute for the Court to adjudicate. Accordingly, this Court now recommends, in accordance with its prior order, that this action be dismissed without prejudice, both due to mootness and 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 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
1. This action be DISMISSED WITHOUT PREJUDICE.
2. The application to proceed in forma pauperis of petitioner Sean McNerthney [Dkt. No. 3] be DENIED AS MOOT.
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the District Court and is therefore not appealable directly to the Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written objections to a magistrate judge's proposed finding and recommendations within 14 days after being served a copy” of the Report and Recommendation. A party may respond to those objections within 14 days after being served a copy of the objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in Local Rule 72.2(c).