Opinion
Civil Action 6:22-CV-00018
07-27-2022
VICTORIANO CRUZ ALVARADO, Petitioner, v. JUDGE GARZA, Respondent.
MEMORANDUM AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE
JASON B. LIBBY, UNITED STATES MAGISTRATE JUDGE.
Petitioner filed this prisoner habeas corpus petition pursuant to 28 U.S.C. § 2241 on May 12, 2022. The U.S. District Clerk notified Petitioner his pleading was deficient for failure to pay the filing fee or, alternatively, for failing to file an application to proceed in forma pauperis. (D.E. 4). Petitioner was directed to either pay the filing fee or to file a certified copy of his inmate trust fund statement with his application. Petitioner was directed to comply by June 13, 2022, and notified that failure to comply may result in his case being dismissed for want of prosecution. (D.E. 4); Fed.R.Civ.P. 41(b). Petitioner did not comply.
On June 30, 2022, this Court entered a Notice of Deficiency and ordered Petitioner to either pay the $5.00 filing fee or submit an IFP application along with a copy of his trust fund statement no later than July 22, 2022. (D.E. 5). Petitioner was again notified that failure to comply may result in dismissal for want of prosecution. Fed.R.Civ.P. 41(b). Plaintiff failed to comply with the Court's order.
Therefore, it is respectfully recommended that Petitioner's case be DISMISSED without prejudice pursuant to Fed.R.Civ.P. 41(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute).
ORDERED.
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. § 636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a Magistrate Judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).