Opinion
No. 3:03-CV-2600-R.
April 28, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for a writ of habeas corpus brought by a removable alien pursuant to 28 U.S.C. § 2241.
Parties: Petitioner, through retained counsel, filed this petition while free on an immigration bond. (Exh. 8 to Respondent's Mot. to Dismiss). Respondent is Tom Ridge, Secretary of the Department of Homeland Security. The magistrate judge issued an order to show cause to Respondent. Findings and Conclusions: In response to this court's order to show cause, Respondent filed an answer and motion to dismiss contending (1) the court lacks subject matter jurisdiction because Petitioner was not in custody of Respondent at the time of filing the petition, (2) Petitioner failed to allege a statutory or constitutional violation, and (3) the order of removal was valid. Neither Petitioner nor his counsel filed a response to Respondent's answer/motion to dismiss. Nor have they filed a response to Respondent's March 23, 2004 Notice to the Court, which advised that Petitioner was arrested by Immigration and Customs Enforcement agents on February 12, 2004, and removed to the Republic of Mexico on February 15, 2004. (Exhibits 1 and 2 to Respondent's Mot. to Dism).
The petition named as Respondent the Immigration and Naturalization Service (INS). On October 28, 2003, the magistrate judge substituted Tom Ridge, Secretary of the Department of Homeland Security, as Respondent.
Although a subsequent deportation or removal does not generally moot a habeas corpus petition, this action is nevertheless subject to sua sponte dismissal under Fed.R.Civ.P. 41(b) for failure to prosecute. Neither Petitioner nor his counsel have filed anything in this case since the inception of this case. They did not object to Respondent's Motion to Dismiss, nor did they submit anything subsequent to his deportation. In short, they have given no indication that they intend to proceed with this action.
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 [under Rule 41(b)] 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, 82 S.Ct. 1386 (1962)); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (habeas action).
Petitioner has been given ample opportunity to prosecute this action. Accordingly, the Court should dismiss his petition without prejudice for want of prosecution pursuant to Rule 41(b).See Forbes v. Immigration and Naturalization Service, 2001 WL 869646, 3:00-cv-1436-R (N.D. Tex., Dallas Div.) (accepting findings and recommendation of the magistrate judge which recommended dismissal of the petition without prejudice for want of prosecution because the pro se petitioner had not filed anything subsequent to his deportation).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition be dismissed without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). A copy of this recommendation will be mailed to counsel for Petitioner and for Respondent.