Rogers v. Dretke

Full title: DARRIN KEITH ROGERS, 1052731, Petitioner, v. DOULGAS DRETKE, Director…

Court: United States District Court, N.D. Texas

Date published: Jan 27, 2004

No. 3:03-CV-2758-H (N.D. Tex. Jan. 27, 2004)

Opinion

No. 3:03-CV-2758-H

January 27, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, 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 November 13, 2003, Petitioner filed this suit pursuant to 28 U.S.C. § 2254. Petitioner did not pay the $5.00 filing fee or file a proper request to proceed in forma pauperis. On November 20, 2003, 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. 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).

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 Plaintiff by mailing a copy to him by United States Mail. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten 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. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any 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 Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).