Opinion
3:22-cv-101
08-17-2022
JOSHUA RYAN FULLER, Plaintiff, v. WARDEN, FCI BECKLEY, Defendant.
KIMBERLY A. JOLSON, MAGISTRATE JUDGE.
ORDER: (1) ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE (Doc. No. 5); (2) DISMISSING PETITIONER'S HABEAS PETITION WITHOUT PREJUDICE; (3) DENYING PLAINTIFF A CERTIFICATE OF APPEALABILITY; (4) CERTIFYING THAT ANY APPEAL WOULD BE OBJECTIVELY FRIVOLOUS AND FINDING THAT IN FORMA PAUPERIS STATUS SHOULD BE DENIED ON APPEAL; AND (5) TERMINATING THIS CASE ON THE DOCKET
HON. MICHAEL J. NEWMAN, UNITED STATES DISTRICT JUDGE.
This case is before the Court on the Report and Recommendation issued by United States Magistrate Judge Kimberly A. Jolson (Doc. No. 5), to whom this case was referred pursuant to 28 U.S.C. § 636(b). Judge Jolson initially entered a Deficiency Order against Petitioner, a federal prisoner challenging his sentence, noting that he neither paid the required $5.00 filing fee nor submitted a motion for leave to proceed in forma pauperis. Doc. No. 4 at PageID 12. Additionally, she ordered him to either pay this fee or submit a motion for leave to proceed in forma pauperis, and to file an amended petition or otherwise respond to her order within fourteen days. Id. at PageID 12-13.
More than thirty days have passed since that order, without any action by Plaintiff. Now, Judge Jolson has recommended that Plaintiff's habeas petition be dismissed under Fed.R.Civ.P. 41(b) and Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts for non-prosecution. See Doc. No. 5. No party objected to the Report and Recommendation.
Upon careful de novo consideration of the foregoing, the Court determines that the Report and Recommendation should be adopted. Accordingly, it is hereby ORDERED that: (1) the Report and Recommendation is ADOPTED in full (Doc. No. 5); (2) Plaintiff's petition is DISMISSED WITHOUT PREJUDICE; (3) DENIES Plaintiff a certificate of appealability; (4) CERTIFIES that any appeal would be objectively frivolous and finds that Plaintiff should be denied in forma pauperis status on appeal; and (5) TERMINATES this case on the Court's docket.
IT IS SO ORDERED.