Opinion
No. 3:02-CV-0049-L
April 2, 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, as evidenced by her signature hereto, are as follows:
Findings: On January 7, 2002, petitioner filed the instant petition under 28 U.S.C. § 2254 and an application to proceed in forma pauperis. On January 17, 2002, after noting that he had failed to file the required certificate of in-mate trust account with his application to proceed in forma pauperis, the Court entered a Notice of Deficiency and Order that directed petitioner to cure the deficiency within twenty days of the date of that Order. The Notice of Deficiency and Order was returned to the Court with the notation: "moved left no address." No process has been issued in this case. To date, petitioner has filed no change of address. He has changed addresses without notifying the Court. Such action exhibits an intent to not proceed with the instant action.
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 exhibited an intent not to prosecute this action. Accordingly, the Court should dismiss his petition.
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).