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UNITED STATES DISTRICT COURT 

 EASTERN DISTRICT OF MICHIGAN 

 SOUTHERN DIVISION 

DERRICK LEE SMITH, 

 Petitioner, 

v. CASE NO. 14-14790 

 HONORABLE TERRENCE G. BERG 

MICHIGAN DEPARTMENT 

OF CORRECTIONS HEARINGS 

DIVISION, et al.,

 Respondents. 

_________________________________/ 

ORDER DISMISSING THE HABEAS CORPUS PETITION AND 

 DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY 

 OR TO GRANT LEAVE TO APPEAL IN FORMA PAUPERIS

I. INTRODUCTION

 On December 18, 2014, state prisoner Derrick Lee Smith (“Petitioner”) 

commenced this action by filing a “Certificate of Prisoner Institutional/Trust Fund 

Account Activity” and a pro se habeas corpus petition under 28 U.S.C. § 2254. The 

habeas petition challenges a prison misconduct proceeding in which Petitioner was 

found guilty of possessing forged documents and being an accomplice to forgery. He 

was punished with three days loss of privileges and now seeks to have the 

misconduct charge dismissed and the “guilty” finding removed from his files. 

 Petitioner did not prepay the filing fee for this action. Nor did he file a 

proper application for leave to proceed in forma pauperis. Accordingly, on 

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December 20, 2014, the Magistrate Judge ordered Petitioner to pay the $5.00 filing 

fee or to submit a completed application to proceed in forma pauperis within 

twenty-one days of the date of the order. The Magistrate Judge warned Petitioner 

that failure to comply with his order could result in the dismissal of the habeas 

petition. On January 8, 2015, Petitioner filed a document purporting to raise new 

claims, but, to date, he has not paid the $5.00 filing fee, nor submitted a proper 

application to proceed in forma pauperis. 

II. DISCUSSION

 Under the Federal Rules of Civil Procedure, a defendant may move to dismiss 

an action if a plaintiff fails either to prosecute an action or to comply with a court 

order. Fed. R. Civ. P. 41(b). The Supreme Court has interpreted this rule to permit 

federal courts to dismiss sua sponte an action for lack of prosecution. As explained 

in Link v. Wabash R. Co., 370 U.S. 626 (1962), “[n]either the permissive language of 

the Rule—which merely authorizes a motion by the defendant—nor its policy 

requires us to conclude that it was the purpose of the Rule to abrogate the power of 

courts, acting on their own initiative, to clear their calendars of cases that have 

remained dormant because of the inaction or dilatoriness of the parties seeking 

relief.” Id. at 630. The power to dismiss an action for lack of prosecution “is 

necessary in order to prevent undue delays in the disposition of pending cases and 

to avoid congestion in the calendars of the District Courts.” Id. at 629-30. 

 Similarly, under this Court’s Local Rules, “the Court may, on its own motion 

after reasonable notice or on application of a party, enter an order dismissing a 

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case” when a party has “taken no action for a reasonable time.” L.R. 41.2 (E.D. 

Mich. Mar. 2, 1998). 

Local Rule 41.2 expressly authorizes sua sponte dismissals for lack of 

prosecution. Furthermore, it is axiomatic that the Court possesses 

inherent power to dismiss sua sponte, without notice or hearing, “to 

achieve the orderly and expeditious disposition of cases”. See

Schwarzer, Tashima & Wagstaffe, Federal Civil Procedure Before 

Trial, ch. 16, § 431. See also Link v. Wabash Railroad Co., 370 U.S. 

626, 630–632, 82 S.Ct. 1386, 1388–1389, 8 L.Ed.2d 734 (1962); 

Sturgeon v. Airborne Freight Corp., 778 F.2d 1154, 1159 (5th Cir. 

1985). 

Branham v. Home Depot U.S.A., Inc., 225 F. Supp. 2d 762, 769 n. 4 (E.D. Mich. 

2002). 

The Sixth Circuit Court of Appeals has concluded that, “[p]ursuant to Fed. R. 

Civ. P. 41(b) and Local Rule 41.2, the United States District Court for the Eastern 

District of Michigan may dismiss complaints for failure to prosecute.” Mulbah v. 

Detroit Bd. Educ., 261 F.3d 586, 589 (6th Cir. 2001). 

 Petitioner has not complied with the Magistrate Judge’s order to submit 

either the $5.00 filing fee or a completed application to proceed in forma pauperis. 

And more than seven months have passed since the Magistrate Judge entered his 

order. 

Accordingly, because no action has been taken for a reasonable time, this 

action must be dismissed for want of prosecution. 

III. CERTIFICATE OF APPEALABILITY

 A certificate of appealability may be issued “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). 

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“The district court must issue or deny a certificate of appealability when it enters a 

final order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a). 

“When the district court denies a habeas petition on procedural grounds without 

reaching the prisoner’s underlying constitutional claims, a [certificate of 

appealability] should issue,” and an appeal of the district court’s order may be 

taken, if “the prisoner shows . . . that jurists of reason would find it debatable 

whether the petition states a valid claim of the denial of a constitutional right and 

that jurists of reason would find it debatable whether the district court was correct 

in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court 

declines to issue a certificate of appealability here, because reasonable jurists would 

not find it debatable whether this Court was correct in determining that Petitioner 

failed to comply with the Magistrate Judge’s order and failed to prosecute this 

action. 

IV. CONCLUSION 

 For the reasons given above, IT IS ORDERED that the habeas petition 

(Dkt. 1) and new claims (Dkt. 5) are dismissed without prejudice1 for failure to 

prosecute. Link, 370 U.S. at 629-30; Fed. R. Civ. P. 41(b); E.D. Mich. LR 41.2. 

 

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 A dismissal without prejudice means that Petitioner may re-file this petition provided that he complies with the 

Court’s Rules in paying the $5.00 filing fee or completing an application to proceed in forma pauperis. 

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IT IS FURTHERED ORDERED that the Court DECLINES to issue 

Petitioner a certificate of appealability. 

SO ORDERED. 

s/Terrence G. Berg 

TERRENCE G. BERG 

UNITED STATES DISTRICT JUDGE 

Dated: July 31, 2015 

Certificate of Service 

I hereby certify that this Order was electronically submitted on July 31, 2015, using the 

CM/ECF system, which will send notification to each party. 

 By: s/A. Chubb 

Case Manager 

 

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