United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE.
appearing pro se, attempted to initiate this action
on August 21, 2017, by filing a document titled,
“Notice to the Court that Petitioner Filed
Post-Conviction Relief Application; Motion to Hold Habeas
Corpus § 2254 Petition Briefing Time in Abeyance While
the Lower District Court Rules on Said Referenced
Application” [Doc. No. 1]. Pursuant to 28 U.S.C. §
636(b)(1)(B), the matter was referred to United States
Magistrate Judge Bernard M. Jones for initial proceedings.
initial pleading, Petitioner asked the Court to hold his
yet-to-be-filed habeas petition in abeyance while he
exhausted his state court remedies [Doc. No. 1]. At the time
of filing, Petitioner had not paid the required $5.00 filing
fee nor submitted an application for leave to proceed in
forma pauperis (“IFP”); he also had failed
to file a habeas petition. In an August 28, 2017 Order to
Cure Deficiency, Judge Jones directed Petitioner to cure
these deficiencies [Doc. No. 4]. Petitioner filed a defective
motion to proceed IFP on September 6, 2017 [Doc. No. 5]. The
motion did not include a certified copy of the trust fund
account statement signed by an authorized officer of the
penal institution where Petitioner was incarcerated.
September 18, 2017 Second Order to Cure Deficiencies, Judge
Jones granted Petitioner additional time to cure the
deficiencies and directed the court clerk to mail Petitioner
the necessary forms to comply with the Order [Doc. No. 7].
Petitioner was cautioned that his failure to cure the
deficiencies could result in dismissal of the action [Doc.
September 21, 2017, Petitioner filed a Petition for Writ of
Habeas Corpus [Doc. No. 8]. In a September 25, 2017 Order,
Judge Jones granted Petitioner until October 16, 2017, to
cure the deficiencies in his Motion for Leave to Proceed IFP
[Doc. No. 9].
November 1, 2017, Judge Jones filed a Report and
Recommendation (“Report”) [Doc. No. 10],
recommending that Petitioner's action be dismissed
without prejudice to refiling. Specifically, Judge Jones
noted that Petitioner had “twice been warned”
that his failure to pay the filing fee or submit an
application to proceed IFP with the appropriate supporting
documentation could result in dismissal of the action [Doc.
No. 10 at 2].
Report, Judge Jones advised Petitioner of his right to object
and directed that any objection be filed on or before
November 21, 2017. [Doc. No. 10 at 3]. Judge Jones further
advised Petitioner that any failure to object would result in
a waiver of the right to appellate review. Id.
the time limits imposed, Petitioner filed his Objection to
Magistrate Judge's Report and Recommendation [Doc. No.
11] on November 16, 2017. Petitioner, however, did not
address in his objections his failure to cure the
deficiencies in his Motion for Leave to Proceed IFP. Section
636(b)(1) requires the Court only to “make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see
also Fed. R. Civ. P. 72(b)(3).
Motion for Leave to Proceed IFP
was warned at least twice by Judge Jones of the specific
deficiencies in his Motion for Leave to Proceed IFP and
granted additional time to cure those deficiencies. [Doc.
Nos. 4, 7, 9]. To date, however, he has not paid the
requisite filing fee or submitted a certified copy of the
trust fund account statement signed by an authorized
officer. See 28 U.S.C. § 1915(a)(2).
Moreover, Judge Jones cautioned Petitioner that his failure
to cure the deficiencies could result in the dismissal of
this action without prejudice to refiling. Section 1915(a)(2)
and the Local Court Rules are clear about these requirements.
IFP in a civil case “is a privilege, not a right -
fundamental or otherwise.” White v. Colorado,
157 F.3d 1226, 1233 (10th Cir. 1998). “It is
incumbent on litigants, even those proceeding pro se, to
follow the federal rules of procedure.” Bradenburg
v. Beaman, 632 F.2d 120, 122 (10th Cir.
1980). Moreover, the Court must manage its caseload and
enforce the Local Court Rules and its own orders. See
Court agrees with Judge Jones that Petitioner's failure
to correct the deficiencies warrants dismissal of this case
without prejudice. Pursuant to Fed.R.Civ.P. 41(b), the Court
may dismiss an action where the petitioner fails to comply
with court rules or a court order. See also AdvantEdge
Bus. Group v. Thomas E. Mestmaker & Associates,
Inc., 552 F.3d 1233, 1236 (10th Cir. 2009)
(dismissal without prejudice warranted as sanction for
failure to comply with local or federal procedural rules);
Green v. Dorrell, 969 F.2d 915, 917 (10th
Cir. 1992); United States ex rel. Jimenez v. Health Net,
Inc., 400 F.3d 853, 855 (10th Cir. 2005)
(dismissal appropriate where party disregards court orders
and fails to proceed as required by court rules).
Motion for Stay and Abeyance
objects to Judge Jones' recommendation that
Petitioner's motion for stay and abeyance be denied.
[Doc. No. 11 at 2]. Petitioner asserts that his motion [Doc.
No. 1] and attached form affidavit [Doc. No. 1-1] legally
suffice to toll the time limitations under the Antiterrorism
and Effective ...