Opinion
CASE NO. 3:19-cv-05531-BHS-JRC
09-10-2019
NICHOLAS LOUIS NOTARO, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
REPORT AND RECOMMENDATION NOTED FOR: OCTOBER 4, 2019
This habeas corpus petition has been referred to the undersigned Magistrate Judge. Petitioner, proceeding pro se, filed the petition pursuant to 28 U.S.C. § 2254. The Court recommends that the action be dismissed. Petitioner has failed to comply with a Court order and failed to prosecute this action.
BACKGROUND
On June 10, 2019, petitioner filed his proposed petition. Dkt. 1. Petitioner did not file an application to proceed in forma pauperis ("IFP") or pay the filing fee. Dkt. 1; Dkt. 2. Petitioner also failed to provide a complete habeas corpus petition. Id. On June 12, 2019, the Clerk's Office instructed petitioner to file a complete habeas corpus petition and pay the filing fee or file the proper IFP form by July 12, 2019. Dkt. 2. The Clerk's office provided petitioner with the correct forms. Dkt. 2-1; Dkt. 2-2.
On July 23, 2019, the Court ordered petitioner to submit a complete habeas corpus petition and the proper IFP form or pay the filing fee by August 23, 2019. Dkt. 3. The Court advised petitioner that if he failed to comply with the Court's order, the Court would recommend dismissal of this action. Dkt. 3. Petitioner has not submitted the proper IFP form, paid the filing fee, or submitted a complete habeas corpus petition. See Dkt.
DISCUSSION
Federal Rule of Civil Procedure 41(b) provides for involuntary dismissal if a petitioner fails to prosecute or to comply with a court order. The dismissal counts as an adjudication on the merits unless the Court provides otherwise. To date, petitioner has failed to submit a complete habeas corpus petition, the proper IFP form, or pay the filing fee. See Dkt. Petitioner has failed to comply with the Court's order and has also failed to prosecute this action. Petitioner does not show good cause for not complying with the Court's order. Accordingly, the Court recommends this action be dismissed without prejudice.
CONCLUSION
The Court recommends that this action be dismissed for failure to comply with a Court order. Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), petitioner shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Fed. R. Civ. P. 72(b), the clerk is directed to set the matter for consideration on October 4, 2019 as noted in the caption.
Dated this 10th day of September, 2019.
/s/_________
J. Richard Creatura
United States Magistrate Judge