Opinion
CIV-23-1088-R
01-31-2024
NANYA MALUK ZODOQ-EL, Petitioner, v. STATE OF OKLAHOMA, Respondent.
REPORT AND RECOMMENDATION
AMANDA MAXFIELD GREEN, UNITED STATES MAGISTRATE JUDGE
On November 27, 2023, the court received an “Application for Post-Conviction Relief” filed by an individual purporting to have power of attorney for Petitioner, seeking unspecified relief under Oklahoma state law. (Doc. 1, “Application”). United States District Judge David L. Russell referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B), and (C). (Doc. 4). For the following reasons, the undersigned recommends that the Court DISMISS this action without prejudice to the re-filing.
I. Discussion
To proceed in federal court, Petitioner must allege a claim under federal law. See Fed. R. Civ. P. 8(a)(1).The undersigned speculates that Petitioner intends to file a petition for habeas corpus relief. If so, Petitioner must file a proper petition. If Petitioner seeks “to challenge the validity and constitutionality of a sentence he is currently serving,” he must file a petition pursuant to 28 U.S.C. § 2254. Watson v. McCollum, 772 Fed.Appx. 675, 678 (10th Cir. 2019). If Petitioner “does not oppose the sentence or conviction itself, but instead objects to the legality of how that otherwise constitutional sentence is being carried out by prison officials,” he must file a petition pursuant to 28 U.S.C. § 2241. Id. For both types of habeas petitions, Petitioner must also specify the relief he seeks from this court.
Federal courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); accord 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044, 1048 (10th Cir. 2006) (holding that “a court may sua sponte raise the question of whether there is subject matter jurisdiction”); see also Gad v. Kan. State Univ., 585 F.3d 1032, 1035 (10th Cir. 2015).
As noted above, the Application was signed by Sherrivonne Lynette Brown on Petitioner's behalf pursuant to a power of attorney. (Doc. 1, at 3, and Ex. 4). Even assuming that Ms. Brown holds a valid power of attorney that allows her to institute a lawsuit on behalf of Petitioner as his agent, she does not have the authority to practice law by representing Petitioner in this lawsuit without a licensed attorney. A party in federal court must proceed either through a licensed attorney or on his or her own behalf. 28 U.S.C. § 1654; see also Fed.R.Civ.P. 11(a) (“Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name - or by a party personally if the party is unrepresented.”). A power of attorney does not authorize a non-lawyer to prosecute a case in federal court on behalf of another person. See United States v. Bomhak, No. CR-16-075-D, 2019 WL 5255279, at *1 (W.D. Okla. Sept. 18, 2019), report and recommendation adopted, 2019 WL 5213975 (W.D. Okla. Oct. 16, 2019).
Thus, on January 9, 2024, the undersigned ordered Petitioner to cure his Petition by filing a proper petition (or other action alleging a claim under federal law), either himself or by his licensed attorney, on or before January 30, 2024. (Doc. 9). Petitioner was warned that “[f]ailure to comply with this Order may result in the dismissal of this action.” (Id. at 2). On January 12, 2024, the court received an “Application for Post-Conviction Relief (Amended)” again signed by Ms. Brown. (Doc. 11). This, for the reasons explained above and in the undersigned's order to cure (Doc. 9) will not suffice.
A review of the court file indicates that as of this date, Petitioner has not submitted a proper petition. Furthermore, he has failed to show good cause for his failure to do so, or to request an extension of time to comply with the court's order. Under Federal Rule of Civil Procedure 41(b), a court may dismiss an action if the plaintiff “fails to prosecute or to comply with these rules or a court order.” See also Huggins v. Supreme Court of the United States, 480 Fed.Appx. 915, 916-17 (10th Cir. 2012) (recognizing court's authority to dismiss actions sua sponte under Rule 41(b)). If the dismissal is without prejudice, the court generally need not follow any “particular procedures” in entering the dismissal order. AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs., Inc., 552 F.3d 1233, 1236 (10th Cir. 2009); see also Robledo-Valdez v. Smelser, 593 Fed.Appx. 771, 775 (10th Cir. 2014) (explaining that a district court may, without abusing its powers, dismiss a case without prejudice pursuant to Fed.R.Civ.P. 41(b) without attention to any particular procedures). Failure to comply with court orders leaves the court unable “to achieve orderly and expeditious” resolutions to the actions before it. Link v. Wabash R.R., 370 U.S. 626, 62931 (1962) (discussing the inherent power of a court to dismiss suits for lack of prosecution on its own initiative); see also Rogers v. Ganja, 47 Fed.Appx. 900, 901 (10th Cir. 2002) (“Since [Plaintiff] received proper notice of the IFP requirements and sufficient time to cure, the district court did not abuse its discretion in dismissing the complaint without prejudice.”). Therefore, in light of the court's right and responsibility to manage its cases, the undersigned finds that Petitioner's failure to comply with the court's order warrants dismissal of this action without prejudice. As outlined above, the court has provided Petitioner sufficient notice of the possibility of dismissal, as well as an additional response opportunity through objection to this Report and Recommendation.
II. Recommendation and Notice of Right to Object
For these reasons, the undersigned recommends that this action be DISMISSED without prejudice to the re-filing for Petitioner's failure to comply with the court's order. Petitioner is advised of his right to file an objection to this Report and Recommendation with the Clerk of this Court by February 21, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge unless and until the matter is re-referred.