Opinion
CIV-23-389-F
07-14-2023
FRANCISCO SERRANO, Petitioner, v. HECTOR RIOS et al, Respondent.
REPORT AND RECOMMENDATION
SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE.
Petitioner, a prisoner appearing pro se, has filed this action seeking a writ of habeas corpus under 28 U.S.C. § 2241. (ECF No. 1). United States District Judge Stephen P. Friot has referred the matter to the undersigned magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B).
In accordance with that referral, the undersigned entered an Order requiring Petitioner to: (1) either pay the $5.00 filing fee or submit motion for leave to proceed in forma pauperis and (2) amend his Petition using the Court's approved 2241 habeas corpus form no later than May 30, 2023. (ECF No. 5). Having received nothing from Petitioner, the Court again ordered Mr. Serrano to comply or show cause regarding why he had not complied with the prior order, by June 29, 2023. (ECF No. 6). Both Orders advised the Petitioner that his failure to comply with the Court's directives may result in the dismissal of this action without prejudice to re-filing. Petitioner was provided the necessary forms to comply with the Court's Orders. See ECF Nos. 5 and 6 and Staff Notes dated 05/12/2023 and 06/14/2023.
A review of the court file indicates that as of this date, the Petitioner has failed to comply with the Court's Orders. Petitioner has, however, filed a Motion titled “Emergency Petition For Mandamus Or Habeas Corpus On Wrongful Detention” and a Letter. See ECF Nos. 7 and 8.
In his Motion, Petitioner states: “Respondents REFUSE to allow petitioner to send or receive U.S. Mail, to or from anyone” and requests “this Court honor Habeas Corpus AND writ all parties before the Court for an inquiry, without delay, or issue an injunction against respondents TO stop interfering with U.S. Mail....”” (ECF No. 7). Petitioner does not address the Court' Order to amend his Petition or pay the filing fee. Petitioner's Letter again states that the private prison “refuses to deliver LEGAL mail to him,” but Mr. Serrano again fails to directly address the Court's Orders regarding amendment of his Petition and payment of the filing fee. (ECF No. 8). Petitioner does, however, attach the Court's Order (ECF No 6.) to his letter, which indicates that he is: (1) aware of the deadlines and requirements of this Court, (2) has received legal mail while incarcerated, and (3) has sent legal mail while incarcerated. To date, the Court has not received the required Amended Petition or an application to proceed in forma pauperis nor has the Petitioner paid the $5.00 filing fee.
In light of the Court's right and responsibility to manage its cases, the undersigned finds that Petitioner's failure to comply with the Court's Orders, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents at Arapahoe County Justice Center, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (sua sponte dismissal for failure to comply with Court's orders permitted under federal rules, and court need not follow any particular procedures in dismissing actions without prejudice for failure to comply).
RECOMMENDATION
Based on the foregoing findings, it is recommended that this action be DISMISSED without prejudice for Petitioner's failure to comply with this Court's orders. Adoption of this recommendation would moot any pending motions. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of Court by July 31, 2023, in accordance with 28 U.S.C. § 636 and Fed.R.Civ.P. 72. Petitioner is further advised that any failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.