Opinion
22-3264-JWL-JPO
11-30-2022
JAMES STRADER, Petitioner, v. DANIEL L. SCHNURR, Respondents.
MEMORANDUM AND ORDER
JOHN W. LUNGSTRUM UNITED STATES DISTRICT JUDGE
Petitioner is a prisoner serving state-imposed sentences at Hutchinson Correctional Facility in Hutchinson, Kansas. On October 18, 2022, Petitioner filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 but he did not pay the statutorily required $5.00 filing fee or file a motion to proceed in forma pauperis. On October 20, 2022, the Court issued a notice and order to show cause granting Petitioner “to and including November 21, 2022, in which to either pay the $5.00 filing fee or submit a complete motion to proceed in forma pauperis and the required supporting documentation” and cautioning him that if he failed to do so, “this matter will be dismissed without further prior notice to Petitioner.” (Doc. 2.) In a memorandum and order filed November 9, 2022, the Court reminded Petitioner of this deadline. (Doc. 4.) November 21, 2022 passed without Petitioner paying the filing fee or filing a motion to proceed in forma pauperis in this matter. Thus, on November 28, 2022, the Court dismissed this matter without prejudice under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order. (Doc. 6.)
On November 29, 2022, the Court received from Petitioner a “motion for order of stay and to reappoint Magistrate O'Hara.” (Doc. 8.) In the motion, Petitioner makes several claims about misconduct in his ongoing state-court cases and in previous cases he has pursued in this Court. Those claims are conclusory and unsupported by evidence and will not be addressed further.
The Court notes that United States Magistrate Judge O'Hara, as his assignment to this matter did not end, so the request for “reappointment” is moot..
In addition, Petitioner asserts that Respondent in this matter is refusing to send the filing fee. In support, he refers the Court to documents attached to his motion. The Court has carefully reviewed the attachments and, while they include forms requesting withdrawal of funds from Petitioner's inmate account, none of the documents reflect a request to send $5.00 to this Court to be applied to this matter. Accordingly, the motion does not demonstrate that Petitioner attempted to pay the $5.00 filing fee or that the institution in which he is confined is responsible for the failure to do so. Thus, even if the Court liberally construed the motion as one for reconsideration of the dismissal, it would fail. Because Petitioner has not presented convincing reason for the Court to reconsider the dismissal for failure to comply with a court order, this matter will remain closed. Thus, there is no need for a stay.
IT IS THEREFORE ORDERED that the motion for order of stay and to reappoint Magistrate Judge O'Hara” (Doc. 8.) is denied. This matter remains closed. Petitioner need not respond to the notice and order to show cause issued on October 20, 2022.
IT IS SO ORDERED.