Opinion
Civil Action 6:22cv358
11-30-2022
RAYMOND LONZO MORGAN v. SMITH COUNTY SHERIFF
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
K. NICOLE MITCHELL UNITED STATES MAGISTRATE JUDGE
Petitioner Raymond Lonzo Morgan, an inmate of the Smith County Jail proceeding pro se, filed this federal petition for a writ of habeas corpus without paying the filing fee or moving to proceed in forma pauperis (IFP). The petition was referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, and recommendations for the disposition of the petition.
On September 8, 2022, the Court gave Petitioner thirty days to satisfy that deficiency by either paying the $5 fee or filing a properly supported IFP application. (Dkt. #3 at 1.) The Court expressly warned Petitioner that his petition might be dismissed if he failed to comply in a timely fashion or to seek an extension of time to do so. (Id.) Petitioner has failed to comply with that order. A parenthetical note on his amended petition, dated October 15, 2022, indicates that “payment of $5 is on way,” but more than six weeks have passed since that date, and no payment from Petitioner has been received. (Dkt. #5 at 9.)
A district court may dismiss an action for the failure of a litigant to prosecute or to comply with any order of the court. Fed.R.Civ.P. 41(b); see also McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988) (“The court possesses the inherent authority to dismiss the action sua sponte, without motion by a defendant.”); Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (explaining that a habeas petition may be dismissed pursuant to Rule 41(b)). Further, the district court has both specific and inherent power to control its own docket “to control the disposition of the causes on its docket with economy of time.” See U.S. v Colomb, 419 F.3d 292, 299 (5th Cir. 2005); see also Miller v. Thaler, 434 Fed.Appx. 420, 421 (5th Cir. 2011) (unpublished).
Here, Petitioner failed to comply with the order directing him to satisfy the fee requirement for this case. Dismissal with prejudice for failure to prosecute or to comply an order of the Court is an extreme sanction that should be employed only when “the plaintiff's conduct has threatened the integrity of the judicial process [in a way that] leav[es] the Court no choice but to deny that plaintiff its benefit.” McNeal v. Papasan, 842 F.2d 787, 790 (5th Cir. 1988) (citing Rogers v. Kroger Co., 669 F.2d 317, 321 (5th Cir. 1982)). A court should consider lesser sanctions, such as fines, costs, damages, conditional dismissals, and dismissal without prejudice, among other lesser measures, prior to dismissing an action with prejudice. McNeal, 842 F.2d at 793.
Here, Petitioner's failure to comply with an order is not an action that threatens the judicial process-thereby rendering a dismissal with prejudice unwarranted. Therefore, upon consideration of all relevant factors, the Court has determined that the interests of justice are best served by a dismissal of this case without prejudice.
RECOMMENDATION
Accordingly, it is recommended that the above-styled habeas corpus action be dismissed, without prejudice, for Petitioner's failure to comply with an order of the Court. It is further recommended that Petitioner be denied a certificate of appealability sua sponte, which refers to an appeal of this case only and does not prevent refiling.
Within fourteen (14) days after receipt of the Magistrate Judge's Report, any party may serve and file written objections to the findings and recommendations contained in the Report.
A party's failure to file written objections to the findings, conclusions and recommendations contained in this Report within fourteen days after being served with a copy shall bar that party from de novo review by the district judge of those findings, conclusions and recommendations and, except on grounds of plain error, from appellate review of unobjected-to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
So ORDERED and SIGNED this 30th day of November, 2022.