Opinion
No. 3:01-CV-2871-P
April 2, 2002
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, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge, as evidenced by her signature hereto, are as follows:
Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is a state inmate currently incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID. No process has been issued in this case.
Findings: Petitioner filed a petition for writ of habeas corpus on December 28, 2001. On January 10, 2002, the Court issued a Notice of Deficiency and Order. It therein notified him that he had not paid the requisite filing fee nor submitted a request to proceed in forma pauperis. It granted him twenty days to cure the deficiency and warned him that the failure to do so would result in a recommendation that his petition be dismissed for failure to prosecute. On January 17, 2002, the Court received a letter from petitioner indicating that he was sending the $5 fee and that the Court should receive it within three to four weeks. To date, petitioner has filed nothing further in this case. Nor has he paid the requisite filing fee.
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. This authority flows from a court s inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997). Petitioner has failed to comply with the Notice of Deficiency and Order of January 10, 2002. Accordingly, the Court should dismiss his petition.
RECOMMENDATION:
For the foregoing reasons, it is recommended that plaintiffs petition be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).