Opinion
Case No. 8:11-CV-1025-T-30TGW.
June 20, 2011
ORDER
This matter is before the Court, sua sponte, for review of the file. Petitioner, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Dkt. 1). On May 11, 2011, pursuant to Local Rule 1.03(e) (M.D. Fla. 2009), the Court ordered Petitioner to either pay the $5.00 filing fee or submit a request to proceed in forma pauperis on or before June 10, 2011 (Dkt. 6).
To date, Petitioner has not responded to the Court's May 11, 2011 order. Petitioner was cautioned in the order that failure to comply with the order "will result in the dismissal of this action without further notice." ( Id.). The order was mailed to Petitioner's address of record, and it has not been returned to the Clerk as undeliverable.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court can, in its own discretion, dismiss an action based on the failure of a plaintiff to prosecute or comply with any order of the court. See also Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962) (finding that "[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.") ; Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (finding that "[a]lthough [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to `achieve the orderly and expeditious disposition of cases.'").
Moreover, Rule 1.03(e) of the Local Rules of the United States District Court for the Middle District of Florida provides that a prisoner case will be subject to dismissal by the Court, sua sponte, if the filing fee is not paid or if the application [to proceed in forma pauperis] is not filed within thirty days of the commencement of the action.
ACCORDINGLY, the Court ORDERS that:
1. The Petition for Writ of Habeas Corpus is DISMISSED for failure to prosecute, for failure to comply with Local Rule 1.03(e), and failure to comply with the Court's orders pursuant to Fed.R.Civ.P. 41(b). The dismissal is without prejudice to Petitioner filing a new action under a new case number.
2. The Clerk shall enter terminate all pending motions, and close this case. DONE and ORDERED in Tampa, Florida.
Petitioner is cautioned that although the one-year period of limitation is tolled during the time in which a properly filed application for state post-conviction relief is pending, see Artuz v. Bennett, 531 U.S. 4, 8-9 (2000) (defining when an application is "properly filed" under 28 U.S.C. § 2244(d)(2)), the time in which a federal habeas petition is pending does not toll the one-year limitation period. See Duncan v. Walker, 533 U.S. 167, 172 (2001) (holding that an application for federal habeas corpus review does not toll the one-year limitation period under § 2244(d)(2)).