Opinion
No. 3-04-CV-0902-L.
August 19, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Charley T. Ray Neal, 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 March 26, 2004, petitioner filed an application for writ of habeas corpus challenging his conviction and 20-year sentence for aggravated robbery. However, he did not pay the statutory filing fee or submit an application to proceed in forma pauperis. By order dated June 9, 2004, petitioner was directed to correct this deficiency within 20 days or the case would be dismissed. No action was taken in response to that order. On July 19, 2004, the court again ordered petitioner to either pay the statutory filing fee or seek leave to proceed in forma pauperis. Petitioner was warned that the "failure to comply with the Court's order within twenty (20) days may result in the imposition of sanctions, including dismissal of this action for want of prosecution." To date, petitioner still has not paid the statutory filing fee or sought leave to proceed in forma pauperis. The court now determines that this case should be dismissed without prejudice pursuant to Fed.R.Civ.P. 41(b).
Petitioner originally filed this action in the United States District Court for the Southern District of Texas. By order dated April 26, 2004, the case was transferred to the Northern District of Texas pursuant to 28 U.S.C. § 2241(d). Neal v. Dretke, No. H-04-1169 (S.D. Tex. Apr. 26, 2004).
II.
A district court has authority to dismiss a case for want of prosecution or 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 futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Petitioner has not paid the statutory filing fee or sought leave to proceed in forma pauperis. Until he does so, this litigation cannot proceed. Petitioner was twice notified of this deficiency and warned that the failure to pay the filing fee or seek leave to proceed in forma pauperis would result in the dismissal of his case. Both orders have been ignored. Under these circumstances, dismissal is clearly warranted.
RECOMMENDATION
This case should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.