Opinion
Nos. 3:02-CR-0350-H, 3:03-CV-2119-H.
January 7, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
In September 2003, movant commenced this action by filing a hand-written "Motion to Vacate or Set Aside Conviction and Sentence 28 U.S.C. § 2255" that listed five state cause numbers as the challenged convictions. In an abundance of caution, the Court construed the filing as a challenge to movant's federal conviction in Cause No. 3:02-CR-350-H, and issued a Notice of Deficiency and Order in which it noted that the motion to vacate was not filed on the appropriate form. It granted movant twenty days to cure the deficiency and warned him that the failure to do so would result in a recommendation that this action be dismissed for failure to prosecute. To date, petitioner has filed nothing further in this action. No process has been issued in this case.
II. INVOLUNTARY DISMISSAL
Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988). This authority flows from a court's inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Petitioner has failed to comply with the Order of September 24, 2003, that he correct the noted deficiency within twenty days. Such failure indicates that he has no current intention to proceed with this case. Accordingly, the Court should dismiss this action.
III. RECOMMENDATION
For the foregoing reasons, it is recommended that movant's motion to vacate be dismissed without prejudice for want of prosecution pursuant to Fed.R.Civ.P. 41(b).