Opinion
CIVIL ACTION H-21-2932
11-01-2021
Francisco Salazar, Petitioner, v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
REPORT AND RECOMMENDATION
Peter Bray, United States Magistrate Judge.
Francisco Salazar, an inmate confined in the Texas Department of Criminal Justice, filed what the court construed to be a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The court warned Salazar, pursuant to Castro v. United States, 540 U.S. 375 (2003), that he must raise all the federal habeas claims he seeks to pursue, or risk being barred from doing so in the future. The court ordered Salazar to file an amended petition on the proper form that included every claim that he wished to bring. The court also ordered Salazar to state whether he had exhausted his claims and whether the applicable one-year statute of limitations barred his claims. (D.E. 6.)
Salazar did not comply with the court’s order and his time to do so has expired. A district court has inherent authority to dismiss a case for a litigant’s failure to prosecute the action or for his failure to comply with a court order. See Fed. R. Civ. P. 41(b); see, e.g., Mutuba v. Halliburton Co., 949 F.Supp. 2d 677, 687 (S.D. Tex. 2013). Salazar’s failure to comply as directed demonstrates that he has failed to exercise diligence in prosecuting his case. Therefore, dismissal without prejudice for want of prosecution is appropriate. See Fed. R. Civ. P. 41(b); Larson v. Scott, 157 F.3d 1030,1031 (5th Cir. 1998) (noting that a district court may sua sponte dismiss an action 1 for failure to prosecute or to comply with any court order).
Accordingly, the court recommends that Salazar’s federal habeas corpus petition be dismissed without prejudice. Salazar may seek to reinstate this case by: (1) filing an appropriate motion under Rule 6o(b) of the Federal Rules of Civil Procedure; and (2) fully complying with the court’s September 15, 2021 order directing him, in part, to file every claim he wants to bring on an approved federal habeas petition form.
The court further recommends that a certificate of appealability not issue.
The petitioner has fourteen days from service of this report and recommendation to file written objections. See Rule 8(b) of the Rules Governing Section 2254 Cases; 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72. Failure to timely file objections will preclude appellate review of factual findings or legal conclusions, except for plain error. See Thomas v. Arn, 474 U.S. 140, 147-49 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 2