TEPP v. DRETKE

Full title: STEVE GEORGE TEPP, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Oct 13, 2004

2:04-CV-0182 (N.D. Tex. Oct. 13, 2004)

Opinion

2:04-CV-0182.

October 13, 2004

REPORT AND RECOMMENDATION TO DISMISS FOR WANT OF PROSECUTION

CLINTON AVERITTE, Magistrate Judge

Petitioner STEVE GEORGE TEPP, a state prisoner confined in the Clements Unit, has filed with this Court an Amended Petition for a Writ of Habeas Corpus by a Person in State Custody. By his amended habeas application, petitioner appears to challenge three (3) prison disciplinary proceedings which purportedly resulted in the loss of 243 days good time.¹

1 Petitioner references a disciplinary proceeding number not herein challenged in the portion of the form inquiring as to the result at Step 1 of the prison grievance procedure. Petitioner also attaches a Disciplinary Report and Hearing Record form for another disciplinary proceeding number not herein challenged wherein he did not lose any good time.

Petitioner did not submit with his habeas application any payment to satisfy the requisite filing fee, nor did he submit a Request to Proceed In Forma Pauperis and a certified in forma pauperis data sheet from the institution in which he is confined. On July 19, 2004, this Court ordered petitioner to submit the request and data sheet, pay the filling fee, or submit proper documentation evidencing the authorization of the disbursement of the requisite funds for the fee. Petitioner was warned that his failure to properly supplement or pay the filing fee would result in an immediate recommendation for the dismissal of this case without further notice. As of this date, no fee or proper supplementation has been submitted to this Court.

As of this date, petitioner is in direct disregard of the Court's Order. Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5^th Cir. 1988). "This authority [under Rule 41(b)] flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5^th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386 (1962)). Petitioner has been given ample opportunity to pay the filing fee or submit a request to proceed in forma pauperis with a data sheet. Petitioner, however, has failed to follow the Court's direct order and has neglected his case to such an extent that it warrants dismissal. Therefore, it is the opinion of the undersigned that petitioner's habeas application should be dismissed for want of prosecution.

Alternatively, it is the opinion of the undersigned that petitioner's federal habeas application should be dismissed on the bases of failure to exhaust state remedies or for procedural default in that it does not appear petitioner exhausted his state remedies through the prison grievance procedure appeal of his disciplinary proceedings.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Amended Petition for a Writ of Habeas Corpus filed by petitioner STEVE GEORGE TEPP be DISMISSED for want of prosecution.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.

IT IS SO RECOMMENDED.