Opinion
Case No. CIV-18-1006-R
12-10-2018
ROBERT JOE STRANGE, Petitioner, v. STATE OF OKLAHOMA, et al., Respondents.
REPORT AND RECOMMENDATION
Petitioner—a state prisoner seeking habeas relief under 28 U.S.C. § 2254 and appearing pro se,—has submitted an application for leave to proceed in forma pauperis and supporting affidavit. See Doc. 2. Because Petitioner has failed to follow this Court's orders to cure the deficiencies in his ifp application, the undersigned recommends the dismissal without prejudice of Petitioner's action.
United States District Judge David L. Russell has referred this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), (C). See Doc. 4.
Citations to a court document are to its electronic case filing designation and pagination. --------
I. Background.
Petitioner filed an ifp affidavit stating he is "a poor person without funds or property or relatives willing to assist [Petitioner] in paying for filing the within instrument." Doc. 2, at 1. On October 15, 2018, the undersigned informed Petitioner he filed the OCCA Form 13.2 intended for use in criminal cases in Oklahoma state court and that Petitioner must submit the appropriate form by November 5, 2018. See Doc. 5. The Court Clerk was instructed to send Petitioner blank copies of the appropriate ifp form. See id. at 1. On that same day, the Court received a second ifp affidavit from Petitioner which was again on the incorrect state court form with non ifp-related exhibits attached. See Doc. 6.
On October 23, 2018, Petitioner then filed a third ifp affidavit on the incorrect state court form. Doc. 7. The undersigned again explained this deficiency to Petitioner and ordered him to cure by submitting the appropriate form for prisoners seeking to proceed ifp in federal district court by November 19, 2018. See Doc. 8. The undersigned specifically warned Petitioner his "[f]ailure to comply with this Order by November 19, 2018 will likely result in this Court dismissing the action." Id. at 1. The Court Clerk was again instructed to send Petitioner the correct ifp form. See id.
The Court is now in receipt of Petitioner's fourth ifp affidavit filed on November 5, 2018. Doc. 9. Petitioner has once again filed his application on the state court form, without providing the necessary information or certified statement of his institutional accounts that are required by federal law for a litigant seeking ifp status. See 28 U.S.C. § 1915. Petitioner did attach this Court's order ordering Petitioner to submit the appropriate ifp form. See Doc. 9, Ex. 1. Since November 5, 2018, the Court has not received from Petitioner any other filings attempting to or correcting the deficient ifp.
II. Analysis.
Petitioner has failed to file what he must to comply with this Court's orders and has failed to do so despite the undersigned's explanations and despite receiving blank copies of the necessary form application for leave to proceed ifp. The undersigned finds that Petitioner's failure to comply with this Court's order, together with the Court's right and responsibility to manage and control its case load, warrants dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (noting the Court applies Fed. R. Civ. P. 41(b) to allow sua sponte dismissal for "failure to . . . comply with the rules of civil procedure or court's orders").
III. Recommendation and notice of right to object.
Because Petitioner has failed to comply with this Court's order, the undersigned recommends the dismissal without prejudice of Petitioner's action.
The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before January 2, 2019, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 10th day of December, 2018.
/s/_________
SUZANNE MITCHELL
UNITED STATES MAGISTRATE JUDGE