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Jackson v. Ravitz

United States District Court, W.D. Oklahoma

April 2, 2019

CENTERDOR JACKSON, Petitioner,
v.
ROBERT RAVITZ, et al., Respondents.

          REPORT AND RECOMMENDATION

          SUZANNE MITCHELL UNILED STATES MAGISTRATE JUDGE

         Centerdor Jackson (Petitioner), a prisoner in state custody, “PETITION[S] FOR A WRIT OF HABEAS CORPUS PURSUANT TO 12 OKL. ST. ANN. § 1332-1331” “IN THE DISTRICT COURT OF Western COUNTY STATE OF OKLAHOMA[.]” Doc. 1, at 1.[1] Petitioner identifies a conviction in the District Court of Oklahoma County, No. CRF-1984-4152, as the “judgement of conviction under attack . . . .” Id. The title of his pleading notwithstanding, Petitioner “request[s] action by the federal court.” Id. at 7 (emphasis added).

         Following a preliminary review of the petition, the undersigned notified Petitioner that if he intended to petition an Oklahoma state court for habeas relief from his judgment of conviction, he had mailed his petition to the wrong court. See Doc. 4, at 1. The undersigned further explained that if, on the other hand, it had been Petitioner's intent to ask this United States District Court for habeas relief under 28 U.S.C. § 2254, he had failed to use the required form to do so. See Id. at 1-2. The undersigned advised Petitioner that under this Court's Local Civil Rule (LCvR) 9.2(a), all “[p]etitions for writs of habeas corpus . . . by persons in state . . . custody . . . shall be on forms provided by the clerk of this court” and that the “[f]ailure to use said forms or to supply the court with the equivalent information required by the forms will result in the [petition] being ordered stricken.” See Id. at 2.

         Additionally, the undersigned informed Petitioner that if he intended to seek habeas relief from this Court under 28 U.S.C. § 2254, he was required to pay a $5 filing fee or be granted leave to proceed without prepayment of such fee, and that he had neither paid the filing fee nor applied for leave to proceed in forma pauperis. See Id. (citing 28 U.S.C. §§ 1914(a), 1915(a)(1); LCvR 3.2, 3.3(a)).

         To give Petitioner the opportunity to cure these deficiencies if it was his intent to seek habeas relief from this Court, the undersigned directed the Clerk of Court to include a form Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254, a form Application for Leave to Proceed In Forma Pauperis, and a copy of this Court's Local Civil Rules when mailing the order to cure deficiencies to Petitioner. See id.

         Finally, the undersigned issued the following warning:

For this habeas action to proceed in this Court, Petitioner must cure the deficiencies noted above within twenty-one days from the date of this Order, that is, on or before Tuesday, March 19, 2019. The court cautions Petitioner that his filings must be readable and that he must verify under penalty of perjury that the facts alleged are true. See 28 U.S.C. § 2242.
Petitioner's failure to comply with this Order will result-without further warning-in a recommendation to dismiss this action.

Id. at 2-3. According to the court's docket report in this matter, the undersigned's order to cure, as well as the forms and rules, were sent to the only address Petitioner has provided to the court, and they have not been returned to the court as undeliverable.[2]

         Petitioner's March 19, 2019 deadline to cure has passed, and he has not taken steps to cure the noted deficiencies or to otherwise show a continued interest in this matter. Despite the undersigned's clear warning, Petitioner has simply failed to communicate with the court in any manner. Petitioner's exhibited lack of interest coupled with the court's responsibility to manage and control its caseload warrant dismissal of this action without prejudice. See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2, 1162 (10th Cir. 2007) (the court applies Fed.R.Civ.P. 41(b) to allow sua sponte dismissal for “failure to . . . comply with the rules of civil procedure or court's orders”).

         Recommendation and Notice of Right to Object

         For the reasons stated, the undersigned recommends the dismissal of this action without prejudice to refiling.

         The undersigned advises Petitioner of his right to file an objection to this Report and Recommendation with the Clerk of Court on or before April 23, 2019, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Petitioner that failure to file a timely objection to this Report and Recommendation waives his right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

         The undersigned directs the Clerk of Court to transmit a copy of this Report and Recommendation through electronic mail to the Attorney General of the State of Oklahoma ...


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