Opinion
No. 3-04-CV-0896-D.
July 15, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Steve Lorenzo Tyson, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be dismissed without prejudice.
I.
Petitioner is serving a 15-year sentence in the TDCJ-ID for an unspecified criminal offense. On April 27, 2004, petitioner filed this action in federal court seeking immediate release to mandatory supervision pursuant to Tex. Gov't Code Ann. § 508.141, et seq. However, he did not tender a standard form habeas petition, pay the required filing fee, or seek leave to proceed in forma pauperis. The court notified petitioner of these deficiencies on May 7, 2004. Petitioner was ordered to file a form habeas petition and either pay the $5.00 filing fee or file a motion to proceed in forma pauperis within 20 days or his complaint would be dismissed for failure to prosecute. See NOTICE OF DEFICIENCY AND ORDER, 5/7/04. Petitioner did not respond to this order. On June 9, 2004, the court again ordered petitioner to correct these deficiencies within 20 days and reminded him that the failure to do so "may result in the imposition of sanctions, including dismissal of this action for want of prosecution." See ORDER, 6/9/04. To date, petitioner still has not submitted a form habeas petition, paid the statutory filing fee, or sought leave to proceed in forma pauperis. The court now determines that this case should be dismissed.
Although petitioner seeks mandamus and declaratory relief, a civil action challenging the fact or duration of confinement must be construed as an application for writ of habeas corpus under 28 U.S.C. § 2254. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983); Johnson v. Hardy, 601 F.2d 172, 174 (5th Cir. 1979).
II.
A district court has authority to dismiss a case for failure to comply with a court order. FED. R.CIV.P. 41(b); Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). This authority "flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Insurance Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985), citing Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Such a dismissal may be with or without prejudice. See Long v. Simmons, 77 F.3d 878, 879-80 (5th Cir. 1996). A dismissal with prejudice is appropriate only if the failure to comply with the court order was the result of purposeful delay or contumacious conduct and the imposition of lesser sanctions would be futile. Id.; see also Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir. 1992).
Petitioner has not filed a form habeas petition, paid the statutory filing fee, or sought leave to proceed in forma pauperis. Until he does so, this litigation cannot proceed. Petitioner was twice notified of these deficiencies and warned that the failure to cure these defects would result in the dismissal of his case. Both orders have been ignored. Under these circumstances, dismissal is clearly warranted.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be dismissed without prejudice pursuant to Rule 41(b) of the Federal Rules of Civil Procedure.