Opinion
No. 3:01-CV-2600-R.
April 30, 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 District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
Parties:
Petitioner is an inmate in the custody of Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
Statement of Case:
On December 7, 2001, petitioner filed this suit pursuant to 28 U.S.C. § 2254. Petitioner did not pay the filing fee or submit an application to proceed in forma pauperis. On January 3, 2001, the Court sent Petitioner a notice of deficiency and directed the Clerk of the Court to send Petitioner a form application to proceed in forma pauperis. The notice of deficiency warned Petitioner that failure to cure the deficiency within twenty days may result in a recommendation that the petition be dismissed. More than twenty days have passed and Petitioner has failed to pay the filing fee or file an application to proceed in forma pauperis.
Discussion: 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)). Petitioner has failed to comply with the Court's deficiency order. He has neither paid the filing fee nor filed an application to proceed in forma pauperis. Accordingly, his petition for writ of habeas corpus should be dismissed for want of prosecution. See Larson, 157 F.3d at 1031-32 (holding that court acted within its discretion in dismissing a case for failure to submit the prisoner trust fund statement or pay the filing fee as required by the PLRA).
RECOMMENDATION:
The Court recommends that the petition for writ of habeas corpus be dismissed without prejudice for want of prosecution, pursuant to Fed.R.Civ.P. 41(b).