Opinion
2:00-CV-0374.
February 26, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On November 16, 2000, petitioner GRADY MITCHELL, an inmate confined at the Clements Unit, filed with this Court an handwritten pleading entitled "Writ of Habeas Corpus." From a liberal reading of petitioner's pleading, it appears petitioner may be attempting to challenge a February 2000 disciplinary proceeding which resulted in a reduction in his class status, and to assert a Texas Tort Claims Act cause of action. On December 1, 2000, petitioner filed a handwritten pleading entitled "Original Tort Claim 101.021(2)" stating his action is brought pursuant to a state statute and that he is entitled to relief under the Texas Constitution. Said pleading was unfiled as deficient on that same date.
On December 5, 2000, this Court entered an Order allowing petitioner to temporarily proceed with this case in forma pauperis pending submission of the filing fee, or an application to proceed in forma pauperis and a certified data sheet. On December 5, 2000, the Court, by separate Order, also directed petitioner to obtain a habeas corpus form from his unit library, fully complete such form as directed therein, indicate on the title of the form that it is an "Amended" petition, and file same with this Court within 20 days. On December 21, 2000, petitioner filed a handwritten pleading entitled "Motion to Court" wherein he advised the Court he had forwarded a certified data sheet to the Court. The Court received said data sheet on the same date. Petitioner, however, did not file, by the December 25, 2000 deadline, a form habeas petition as directed by the December 5, 2000 Order. On January 8, 2001, the Court granted petitioner in forma pauperis status.
On January 9, 2000, the Court entered an "Order to Show Cause Why Case Should not be Dismissed" wherein the Court noted no Amended petition on the form adopted for use by this District had been filed of record despite the directive of the Court's December 5, 2000 Order. Petitioner was ordered to file with this Court, on or before January 22, 2001, a written pleading showing just cause why this case should not be dismissed for failure to comply with the Court's December 5, 2000 Order. Petitioner was warned that failure to timely file both an Amended Petition and a pleading showing just cause would result in the dismissal of petitioner's habeas application without further notice.
On January 10, 2001, petitioner filed a handwritten pleading entitled "Writ of Habeas Corpus" wherein he stated the instant cause was brought pursuant to article 11.07 of a state statute and that he "is being illegal [sic] held due to his mental behavior." Said pleading was unfiled as deficient on January 12, 2001.
On January 22, 2001, petitioner filed with this Court a handwritten pleading entitled "Written Pleading" which, apparently, was intended to be a response to the Show Cause Order. Said pleading was unfiled as deficient on January 23, 2001. On January 31, 2000, filed another handwritten pleading entitled "Written Pleading" wherein he appears to re-argue various claims, as well as assert civil rights violations.
As of this date, petitioner has not submitted an Amended Petition on the appropriate habeas corpus form as directed by the Court's December 5, 2000 and January 9, 2001 Orders. Petitioner has disregarded and failed to comply with direct Orders from the Court. Further, petitioner's pleadings do not set forth the necessary information which would be contained in a properly completed habeas form, nor does the information petitioner has provided state a cause of action upon which federal habeas relief can be granted.
It is the opinion of the undersigned that petitioner's failure to follow direct Orders in this case warrants the dismissal of the instant action.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner GRADY MITCHELL be DISMISSED.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card. Petitioner may object to this Report and Recommendation within fourteen (14) days after its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.