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Montgomery v. Stephens

United States District Court, Fifth Circuit

November 18, 2013

GEORGE WILLIAM MONTGOMERY, JR. ID #1699766, Petitioner,
v.
WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

IRMA CARRILLO RAMIREZ, Magistrate Judge.

Pursuant to Special Order 3-251, this case has been automatically referred for findings, conclusions, and recommendation. Based on the relevant filings and applicable law, the case should be dismissed without prejudice for failure to prosecute or follow orders of the court.

I. BACKGROUND

The petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice, filed a petition for habeas corpus relief under 28 U.S.C. ยง 2254 and a motion for leave to proceed in forma pauperis that were received in the Fort Worth Division of this district on September 16, 2013. ( See docs. 1, 2.) The petition was transferred to the Dallas Division on September 18, 2013. ( See doc. 4.) On September 20, 2013, the Court issued a notice of deficiency and order notifying the petitioner that he had not submitted a certificate of inmate trust account (CTA), and that it could not determine his claims from his petition because it was not legible. ( See doc. 6.) The petitioner was ordered to file a CTA and a legible petition within 30 days, and he was warned that failure to do so could result in a formal recommendation that the case be dismissed. Id. More than 30 days from the date of the order have passed, but the petitioner has not filed anything else 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). By order dated September 20, 2013, the petitioner was given notice that his petition is illegible, and that his claims and/or the basis for those claims could therefore not be determined. He was ordered to submit a legible petition and to provide a certificate of inmate trust account. He has failed to submit these documents, and he has not filed anything else or otherwise shown that he intends to proceed with this case in federal court.

III. RECOMMENDATION

This case should be dismissed without prejudice under Fed.R.Civ.P. 41(b) for failure to prosecute or follow orders of the court, unless the petitioner submits a legible petition and a certificate of trust account within the time for objecting to ...


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