United States District Court, S.D. Alabama, Southern Division
REPORT AND RECOMMENDATION
Sonja
F. Bivins, United States Magistrate Judge.
This
action is before the Court on review. Petitioner Sherry
Tyrone Rodgers, an Alabama inmate proceeding pro se,
filed the instant petition seeking habeas corpus relief under
28 U.S.C. § 2254, along with motions to proceed without
prepayment of fees. (Docs. 1, 2, 4, 5). The petition has been
referred to the undersigned Magistrate Judge for a report and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(B),
Local Rule 72(a)(2)(R), and Rule 8 of the Rules Governing
Section 2254 Cases.
In an
Order dated October 5, 2018, Petitioner Sherry Tyrone Rodgers
was directed to refile his habeas petition and his motion to
proceed without prepayment of fees because both were on
outdated forms. (Doc. 3). Petitioner was provided the correct
forms and directed to refile his petition and his motion on
the correct forms by November 2, 2018. (Id.).
Petitioner was cautioned that his failure to comply with the
Order within the prescribed time would result in the
dismissal of this action without prejudice for failure to
prosecute and to obey the Court's Order. (Id.).
While Petitioner filed a new motion to proceed without
prepayment of fees (Doc. 4), he failed to file a new habeas
petition as directed.
Consequently,
in a subsequent Order, dated January 30, 2019, the Court
advised Petitioner that he had failed to follow the
directives of the Court to file a new petition as directed.
(Doc. 6). The Court further advised Petitioner that, not only
was his habeas petition on an outdated form, it was
incomprehensible, as he merely listed various terms, such as
“police brutality”, “medical
attention” “excessive force” and
“illegal conviction”, but provided no facts which
would have shed light on the specific claims that he sought
to raise. (Id.). The Court further advised
Petitioner that it was unclear whether he was attempting to
assert claims under § 1983 or habeas claims related to
his conviction and sentence under § 2254.
(Id.). The Court directed the Clerk to forward to
Petitioner the current form for a § 1983 action and the
current form for a habeas action under § 2254, and,
depending on the type of claims Petitioner wished to raise,
he was ordered to complete and return the § 1983 form or
the § 2254 habeas form by February 20, 2019. Petitioner
was expressly cautioned, again, that failure to timely comply
with the Court's Order would result in the dismissal of
this action.
To
date, Petitioner has not filed either a § 1983 action or
a habeas action under § 2254 on the forms provided to
him. Additionally, the Court's Orders mailed to him have
not been returned by the postal service marked
“undeliverable, ” nor has there been any other
indication that Petitioner has not received the Court's
Orders in this action. To the contrary, Petitioner clearly
received the Court's October 8th Order as he
complied with the portion of the Order requiring him to
refile his motion to proceed in forma pauperis and ignored
that portion that required him to refile his petition. (Docs.
4, 5). Simply put, Petitioner has failed to comply with the
Court's Orders directing him to refile his action on the
Court's forms for habeas actions or § 1983 actions
and has offered no explanation for his noncompliance.
An
action may be dismissed if the plaintiff fails to prosecute
it, or if he fails to comply with any court order. See
Dickinson v. Granade, 2016 U.S. Dist. LEXIS 85448, *26,
2016 WL 3647181, *8 (S.D. Ala. June 1, 2016), report and
recommendation adopted, 2016 WL 3637093 (S.D. Ala. June
30, 2016) (citing Fed.R.Civ.P. 41(b); Link v. Wabash
Railroad Co., 370 U.S. 626, 630-631 (1962) (holding
district courts have the power to sua sponte dismiss
a cause of action for failure to prosecute); World Thrust
Films, Inc. v. International Family Entertainment, Inc.,
41 F.3d 1454, 1456 (11th Cir. 1995) (“‘A district
court has authority under Federal Rule[ ] of Civil Procedure
41(b) to dismiss actions for failure to comply with local
rules.' ”). Because Petitioner has failed to comply
with two Court Orders to refile his petition on this
Court's forms, the undersigned RECOMMENDS that the Court
dismiss his action without prejudice for failure to obey the
Court's orders and to prosecute this action.
Notice
of Right to File Objections
A copy
of this report and recommendation shall be served on all
parties in the manner provided by law. Any party who objects
to this recommendation or anything in it must, within
fourteen (14) days of the date of service of this document,
file specific written objections with the Clerk of this
Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
72(b); S.D. ALA GenLR 72(c). The parties should note that,
under Eleventh Circuit Rule 3-1, “[a] party failing to
object to a magistrate judge's findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1)
waives the right to challenge on appeal the district
court's order based on unobjected-to factual and legal
conclusions if the party was informed of the time period for
objecting and the consequences on appeal for failing to
object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in
the interests of justice.” 11th Cir. R. 3-1. In order
to be specific, an objection must identify the specific
finding or recommendation to which ...