Opinion
No. 3:02-CV-1730-M
November 15, 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 are as follows:
I. BACKGROUND
A. Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is a state inmate incarcerated in the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Procedural History: On July 8, 2002, petitioner filed the instant petition under 28 U.S.C. § 2254 in the Eastern District of Texas. He also filed a request to proceed in forma pauperis. On July 23, 2002, the Eastern District transferred the action to this Court. On August 14, 2002, this Court received the case file. On August 19, 2002, it issued a Notice of Deficiency and Order wherein it notified petitioner that he had not signed his petition or submitted the required inmate account certificate necessary for resolution of his request to proceed in forma pauperis. It also notified him that his pleading was not on the appropriate form. It granted him twenty days to cure the deficiencies and warned him that the failure to do so would result in a recommendation that his action be dismissed for failure to prosecute. To date, petitioner has filed nothing further in this case. Nor has he paid the requisite filing fee.
II. INVOLUNTARY DISMISSAL
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) (habeas action). Petitioner has failed to submit a properly signed petition or the required certificate of inmate trust account. He has given no indication that he intends to proceed with this action. Accordingly, the Court should dismiss his petition for want of prosecution.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that petitioner's writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these findings, conclusions, and recommendation must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. Failure to file written objections to the proposed findings, conclusions, and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).