United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
November 7, 2017, Petitioner Elizabeth Kay Sears, appearing
pro se, submitted an amended petition for writ of habeas
corpus under 28 U.S.C. § 2241 for filing in this Court.
See Am. Pet. (Doc. No. 4). The matter was referred
to the undersigned Magistrate Judge for initial proceedings
in accordance with 28 U.S.C. § 636.
amended pleading, Petitioner identified herself as a
convicted state prisoner incarcerated at Logan County Jail in
Guthrie, Oklahoma. See Am. Pet. at 1-2. Upon initial
review of Petitioner's pleading, the Court informed
Petitioner that the filing fee for a petition for writ of
habeas corpus is $5.00, as noted on the Court's current
fee schedule. Petitioner was instructed that she must either
pay this filing fee or file an application for leave to
proceed in forma pauperis no later than December 6,
2017. See Order of Nov. 15, 2017 (Doc. No. 5). This
Order was mailed to Petitioner at Logan County Jail, and
there is no indication from the docket that she did not
receive this transmission.
however, failed to send any payment or filings to the Court
by this deadline. Accordingly, on December 14, 2017,
Petitioner was notified that she would be allowed “one
final opportunity” to comply with the Court's
Order. See Order of Dec. 14, 2017 (Doc. No. 6).
Petitioner was directed to either pay the $5.00 filing fee or
file an application for leave to proceed in forma
pauperis no later than December 28, 2017. See
Id. Petitioner was advised: “Petitioner's
failure to comply with this Order may result in the dismissal
of this action. See LCvR 3.2, 3.3, 3.5; R. 1(b),
3(a), R. Governing § 2254 Cases in U.S. Dist.
Court's most recent Order was returned as undeliverable,
with a notation of “NIF” (i.e., “not in
facility”). See Doc. No. 7. Petitioner has not
filed a change-of-address form or submitted any other filings
to the Court.
this date, Petitioner has not paid the filing fee, filed an
application for leave to proceed in forma pauperis,
sought an extension of time, or attempted to show good cause
for her failure to follow the Court's directive.
“Petitioner's lack of interest in complying with
the Court's Order[s] combined with the Court's
attempt to manage and control its caseload warrant[s] a
dismissal of the action without prejudice.”
Berryhill v. Trammell, No. CIV-13-1083-W (W.D. Okla.
Nov. 19, 2013) (R. & R. at 2) (citing Bradenburg v.
Beaman, 632 F.2d 120, 122 (10th Cir. 1980)),
adopted, Order (W.D. Okla. Dec. 16, 2013)
(dismissing habeas petition for failure to cure
deficiencies); accord Link v. Wabash R.R. Co., 370
U.S. 626, 629-31 (1962) (discussing the inherent power of a
court to dismiss suits sua sponte for lack of prosecution
“to achieve the orderly and expeditious disposition of
addition, Local Civil Rule 5.4(a) requires every litigant to
promptly notify the Court whenever his or her address changes
during the pendency of the action. This requirement is
especially important when a litigant is in custody during the
pendency of a proceeding because of the special requirements
applicable to consideration of in forma pauperis
status for prisoners. See 28 U.S.C. §§
1915(a)(2), (b)(1); LCvR 3.2, 3.3, 3.5, 5.4(a). Although
Plaintiff is representing herself in this case, she is
obligated by Rule 5.4(a) to notify the Court of any change in
her mailing address, see Davis v. Kan. Dep't of
Corr., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007), which
she has failed to do despite being provided with a copy of
Local Civil Rule 5.4, see Doc. No. 3.
this action should be dismissed without prejudice. See
Thornton v. Estep, 209 F. App'x 755, 756-57 (10th
Cir. 2006) (finding no abuse of discretion in district
court's dismissal of habeas petition for failure to
prosecute when petitioner failed to respond to court's
order and to comply with local rule); Adams v.
Wiley, 298 F. App'x 767, 768-69 (10th Cir. 2008)
(affirming dismissal of § 2241 petition for failure to
prosecute and comply with magistrate judge's order where
“despite being warned of the consequence that his
action would be dismissed, [the petitioner] failed to submit
the forms as ordered by the court”); see,
e.g., Joseph v. Oklahoma, No. CIV-16-91-W, 2016
WL 4490638, at *2 (W.D. Okla. Aug. 24, 2016); cf. Bakalov
v. Utah, 4 F. App'x 654, 655-58 & n.5 (10th Cir.
2001) (rejecting appeal of district court's dismissal of
habeas action when petitioner had failed to file an amended
petition as ordered).
undersigned therefore recommends that Petitioner's action
be dismissed without prejudice to refiling.
OF RIGHT TO OBJECT
is advised of her right to file an objection to this Report
and Recommendation with the Clerk of this Court by January
18, 2018, in accordance with 28 U.S.C. § 636 and Federal
Rule of Civil Procedure 72. Petitioner further is advised
that failure to timely object to this Report and
Recommendation waives the right to appellate review of both