Opinion
3:13-CV-4969-G-BK
03-10-2014
LORENZO GARCIA, # 13728-379, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Div., Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner, a federal inmate, filed a pro se application for state habeas relief under TEX. CODE CRIM. PROC. Art. 11.07 (in connection with Case No. F08-61335-P, 203rd Judicial District Court, Dallas County, Texas), which the Court liberally construed to seek habeas corpus relief under 28 U.S.C. § 2254. [Doc. 3]. For the reasons that follow, it is recommended that this action be dismissed for want of prosecution.
I. BACKGROUND
On January 6, 2014, the Court ordered Petitioner to file his petition for writ of habeas corpus on the appropriate federal form and to pay the required $5.00 filing fee or submit a proper request to proceed in forma pauperis. [Doc. 4]. On February 11, 2014, the Court sua sponte extended the deadline to March 4, 2014. (Doc. 5]. As of the date of this recommendation, however, Petitioner has not responded to the deficiency order, nor has he sought an extension of time to do so.
II. ANALYSIS
Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. 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 Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).
Petitioner has been given ample opportunity to respond to the Court's deficiency order. He has impliedly refused or declined to do so. Therefore, this action should be dismissed without prejudice for lack of prosecution. See FED. R. CIV. P. 41(b) (an involuntary dismissal "operates as an adjudication on the merits," unless otherwise specified).
Absent a petition on the federal form, the Court cannot determine the claims at issue and the application of the limitations period, if any. Thus, it is unclear whether the higher standard for dismissal with prejudice for want of prosecution would be applicable in this case. See Bryson v. United States, 553 F.3d 402, 403-04 (5th Cir. 2008) (citing Callip v. Harris County Child Welfare Department, 757 F.2d 1513, 1519 (5th Cir. 1985)).
III. RECOMMENDATION
For the foregoing reasons, it is recommended that this action be DISMISSED without prejudice for want of prosecution. See FED. R. CIV. P. 41(b).
___________________
RENEE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation will be served on all parties in the manner provided by law. Any party who objects to any part of this report and recommendation must file specific written objections within 14 days after being served with a copy. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify the specific finding or recommendation to which objection is made, state the basis for the objection, and specify the place in the magistrate judge's report and recommendation where the disputed determination is found. An objection that merely incorporates by reference or refers to the briefing before the magistrate judge is not specific. Failure to file specific written objections will bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996).
___________________
RENEE HARRIS TOLIVER
UNITED STATES MAGISTRATE JUDGE