Opinion
Civil Action 2:22-CV-00056
08-09-2022
FRANCISCO CHAVERA, JR., Petitioner, v. BOBBY LUMPKIN, Respondent.
MEMORANDUM AND RECOMMENDATION TO DISMISS CASE FOR FAILURE TO PROSECUTE
JASON B. LIBBY, MAGISTRATE JUDGE
Petitioner filed a letter with this Court on March 14, 2022, construed as a habeas corpus petition pursuant to 28 U.S.C. § 2254. On March 18, 2022, the U.S. District Clerk notified Petitioner his pleading was deficient for failing to pay the filing fee or, alternatively, for failing to file an application to proceed in forma pauperis. (D.E. 4). Petitioner was ordered to pay the filing fee or to submit the required documents on or before April 18, 2022 and was warned that failure to comply may result in the dismissal of his case. (D.E. 4).
On March 21, 2022, the undersigned found Petitioner's letter provided insufficient information about his allegations. (D.E. 5). Therefore, Petitioner was sent a standard 28 U.S.C. § 2254 form and was ordered to complete the form in full, in addition to submitting the full filing fee or filing in forma pauperis documents, to the Court on or before April 18, 2022. (D.E. 5). Petitioner was further warned that failure to comply may result in his case being dismissed for want of prosecution. (D.E. 5). Petitioner did not comply.
However, on April 11, 2022, the Court received a notification that the undersigned's March 21, 2022 Order was returned as undeliverable. (D.E. 6). Therefore, on April 20, 2022, the undersigned located Petitioner's updated address and directed the Clerk of Court to update Petitioner's address and again mail Petitioner a standard 28 U.S.C. § 2254 form. (D.E. 7). Petitioner was again ordered to fully complete this form and to either pay the full filing fee or submit the required in forma pauperis documents on or before May 20, 2022. (D.E. 7). Petitioner was advised that it was his responsibility to keep the Court informed of any changes of address and that the failure to do so will result in the dismissal of this case. Petitioner was also again cautioned that if he failed to comply with any of order of the Court, his case may be dismissed for want of prosecution. (D.E. 7, Page 2). Plaintiff failed to comply with the Court's order.
On May 24, 2022, the undersigned again ordered Petitioner to either pay the $5.00 filing fee or submit an in forma pauperis application along with a copy of his trust fund statement and a fully completed § 2254 form no later than June 10, 2022. (D.E. 8). Petitioner was again notified that failure to comply may result in dismissal for want of prosecution. (D.E. 8, Page 2); Fed.R.Civ.P. 41(b). Notifications received show Petitioner received a copy of the undersigned's May 24, 2022 Order on June 2, 2022. (D.E. 9). However, Petitioner again failed to comply.
Therefore, it is respectfully recommended that Petitioner's case be DISMISSED pursuant to Fed.R.Civ.P. 41(b); see also Martinez v. Johnson, 104 F.3d 769, 772 (5th Cir. 1997) (holding district courts have the power to sua sponte dismiss a cause of action for failure to prosecute).
ORDERED
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to 28 U.S.C. § 636(b)(1)(c); Rule 72(b) of the Federal Rules of Civil Procedure; and Article IV, General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendations in a Magistrate Judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).