Opinion
Civil Action 00-0796-RV-L
April 11, 2001
REPORT AND RECOMMENDATION
Petitioner, an Alabama prison inmate proceeding pro Se, filed a petition under 28 U.S.C. § 2254 and an amendment (Docs. 1 4) together with a Motion to Proceed Without Prepayment of Fees (Doc. 2). This action was referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(B) and Local Rule 72.2(c)(4), and is now before Court for petitioner's failure to comply with the Court's order and to prosecute this action.
Upon review of the petition as amended (Docs. 1 4), the Court found that petitioner did not present his grounds clearly and did not identify in his grounds why he believes his conviction and sentence are unconstitutional (Doc. 5). Petitioner was ordered to file a superseding amended petition by November 8, 2000, for the purpose of correcting the deficient pleading and stating a claim. Petitioner was also ordered to re-file his Motion to Proceed Without Prepayment of Fees with a printout reflecting deposits into his inmate account because the printout had been omitted. Petitioner was warned that his failure to comply with the Court's order would result in the dismissal of his action for failure to prosecute and to obey the Court's order.
On October 19, 2000, petitioner responded to the Court's order with a letter (Doc. 6) concerning the filing fee. Because petitioner did not pay the $5.00 filing fee or file a motion to proceed without prepayment of fees, the Court examined the financial information contained in another action brought by petitioner, Marshall v. Powell, Civil Action No. 00-0574-RV-L, and ordered petitioner to pay the $5.00 filing fee by December 21, 2000 (Doc. 7). The Court also reminded petitioner that he must file his amended petition or his action would be dismissed. The time for filing the amended petition was extended to December 21, 2000.
On December 7, 2000, petitioner filed a Motion to Proceed Without Prepayment of Fees (Doc. 8), and on March 1, 2001, petitioner sent a letter to Clerk listing most of his actions that are pending in this Court (Doc. 9). Documents 8 and 9 concern only the filing fee and appear to be an attempt to have the Court reconsider the imposition of the filing fee even though not expressly stated. To date, petitioner has not paid the filing fee, nor has he filed the amended petition (Doc. 5). Because petitioner has not filed an amended petition and cannot proceed without the amended petition, it is not necessary for the Court to address the issue of the filing fee.
Petitioner is challenging the court-ordered filing fees in several of his actions on the Court's docket. A listing of most of his cases is contained in Document 9.
Due to petitioner's failure to comply with the Court's order and to prosecute this action by filing an amended petition, and upon consideration of the alternatives that are available to the Court, it is recommended that this action be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure as no other lesser sanction will suffice. Link v. Wabash R. R., 370 U.S. 626, 630, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962) (interpreting Rule 41(b) not to restrict the court's inherent authority to dismiss sua sponte an action for lack of prosecution); World Thrust Films, Inc. v. International Family Entertainment, Inc., 41 F.3d 1454, 1456-57 (11th Cir. 1995); Ballard v. Carlson, 882 F.2d 93 (4th Cir. 1989), cert. denied, Ballard v. Volunteers of America, 493 U.S. 1084, 110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990); Mingo v. Sugar Cane Growers Co-op, 864 F.2d 101, 102 (11th Cir. 1989); Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); Jones v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983). Accord Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (ruling that federal courts' inherent power to manage their own proceedings authorized the imposition of attorney's fees and related expenses as a sanction); Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1545-46 (11th Cir.) (finding that the court's inherent power to manage actions before it permitted the imposition of fines), cert. denied, 510 U.S. 863, 114 S.Ct. 181, 126 L.Ed.2d 140 (1993).
Based on the information contained in the present petition as amended (Docs. 1 4), the undersigned concludes that it is highly doubtful that petitioner can present a viable petition for habeas relief. Petitioner states that he was convicted on November 15, 1999, of assault and murder (Docs. 1 4). Considering when petitioner was convicted, it does not appear that sufficient time has elapsed for petitioner to have presented his constitutional challenges to his convictions to the Alabama Court of Criminal Appeals and then to the Alabama Supreme Court and to have each ruled on his claims. O'Sullivan v. Boerekel, 526 U.S. 838, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Petitioner is required to present his claims to these courts; this procedure is called "exhaustion of state remedies."
In any habeas petition that petitioner files in this Court, petitioner is required to show that he has exhausted his state remedies. If petitioner has not exhausted his state remedies, his petition will be dismissed so he may present his claims to the appropriate state courts. If petitioner has not presented his claims to the proper state courts and is no longer able to do so because the time for filing with the state court has expired, petitioner will more than likely be barred from proceeding on his claims in this Court due to having procedurally defaulted on his claims in state court.
The attached sheet contains important information regarding objections to this Report and Reference.