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Sears v. District Attorney

United States District Court, W.D. Oklahoma

December 28, 2017

ELIZABETH KAY SEARS, Petitioner,
v.
DISTRICT ATTORNEY, Respondent.

          REPORT AND RECOMMENDATION

          CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE

         On 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.

         I. Background

         In her 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.

         Petitioner, 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. Cts.” Id.

         The 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.

         II. Discussion

         As of 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 cases”).

         In 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.

         Accordingly, 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).

         RECOMMENDATION

         The undersigned therefore recommends that Petitioner's action be dismissed without prejudice to refiling.

         NOTICE OF RIGHT TO OBJECT

         Petitioner 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 ...


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