IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ELVIS WAYNE JONES, #00536937, )

Petitioner, )

vs. ) No. 3:22-CV-724-E (BH)

)

DIRECTOR, )

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the petitioner’s Application to Proceed In

Forma Pauperis, received May 26, 2022 (doc. 15), should be DENIED, and the case should be

DISMISSED without prejudice for failure to prosecute or follow orders of the court.

I. BACKGROUND

Elvis Wayne Jones (Petitioner) filed a document that appeared to be an “Emergency”

challenge to 1989 state conviction, which was received on March 29, 2022. (See doc. 3.) The

envelope in which it arrived was addressed to the state court of appeals in this district, but it had the

physical address for this federal district court. Because it was filed in this court, it was opened as

a new federal habeas case under 28 U.S.C. § 2254. (See doc. 4.) By Notice of Deficiency and Order

dated March 31, 2022, he was notified that if he intended to file a federal petition for writ of habeas

corpus under § 2254 in federal court, he had not filed it on the appropriate form and either paid the

$5 filing fee or submitted a motion to proceed in forma pauperis (IFP). (See id.) The order

specifically advised Petitioner that he must file his § 2254 petition on the appropriate form and either

pay the filing fee or file an IFP application within 30 days. (See id.) Attached to the order were

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 By Special Order No. 3-251, this habeas case has been automatically referred for findings and recommendation.

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copies of the § 2254 habeas petition form and an IFP application. (See id.) The order specifically

stated that a failure to comply with its terms could result in the dismissal of the petition for failure

to prosecute or to follow court orders. (See id.)

On April 1, 2022, Petitioner’s Motion for Court to Dis-continue Action was received. (See

doc. 5.) It was liberally construed as a notice of voluntary dismissal under Rule 41(a) of the Federal

Rules of Civil Procedure, and the case was closed. (See doc. 6.) On April 22, 2022, however, his

amended § 2254 petition, a blank IFP application, and a motion for new hearing were received, and

the case was ordered reopened by order dated April 26, 2022. (See docs. 6-10.) A second notice

of deficiency and order also issued on April 26, 2022, which unfiled the blank IFP application and

again ordered Petitioner either pay the filing fee or file an IFP application within 30 days. (See doc.

11.) The order, which included an IFP application, specifically stated that a failure to comply with

its terms could result in the dismissal of the petition for failure to prosecute or to follow court orders.

(See id.)

On May 10, 2022, and May 26, 2022, Petitioner’s Inmate Request Withdrawal, IFP

application, and response to an order, respectively, were received. (See docs. 13, 15, 16.) Because

his IFP application showed sufficient assets with which to pay the filing fee, on May 27, 2022,

Petitioner was ordered to pay the full $5 filing fee and to follow the appropriate procedures at his

prison facility to ensure its payment within 30 days. (See docs. 14, 17, 18.) He was again warned

that failure to comply with the order could result in the dismissal of the petition for failure to

prosecute or to follow court orders. (See id.)

Well more than 30 days from the deadline to pay the filing fee have passed, but Petitioner

has not paid the filing fee. His only filing since the order of May 27, 2022, has been a motion to

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enjoin certain conditions at the prison facility at which he is incarcerated, which was received on

June 22, 2022. (See doc. 19.) By order dated June 24, 2022, he was advised that his filing did not

challenge his custody, that he could only raise habeas claims in this § 2254 habeas case, and that 

he must file a separate civil action under the appropriate statutes and pay the applicable filing fees

if he wished to pursue any non-habeas civil claims. (See doc. 20.) He has filed nothing since his

last motion.

II. IN FORMA PAUPERIS

Whether to permit or deny an applicant to proceed in forma pauperis is within the sound

discretion of the Court. Prows v. Kastner, 842 F.2d 138, 140 (5th Cir. 1988); 28 U.S.C. § 1915(a). 

Courts should make the assessment of financial ability after considering whether payment of the

filing fee will result in the petitioner “suffering undue financial hardship.” Prows, 842 F.2d at 140. 

“This entails a review of other demands on individual plaintiffs’ financial resources, including

whether the expenses are discretionary or mandatory.” Id.; see also Misc. Order 13 at ¶ 9 (N.D.

Tex. Feb. 1, 1977) (requiring habeas petitioner to pay filing fee if prison account and other resources

exceed $50.00).

Petitioner’s trust fund account statement showed a balance of $279.73 as of the date of its

preparation and an average six-month balance of $729.00. The first page of the form petition he

submitted expressly gave him notice that if he had or previously had access to enough funds, he

must pay the filing fee. The trust fund account statement shows that Petitioner had access to

sufficient funds to pay the $5.00 filing fee. He has not shown that he has any demands on his

financial resources or that he will suffer undue financial hardship after payment of the $5.00 filing

fee for this habeas action. His IFP motion should therefore be denied.

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III. INVOLUNTARY DISMISSAL

Rule 41(b) of the Federal Rules of Civil Procedure permits a court to dismiss sua sponte an

action for failure to prosecute or follow orders of the court. McCullough v. Lynaugh, 835 F.2d 1126,

1127 (5th Cir. 1988). This authority flows from a court’s inherent power to control its docket, prevent undue delays in the disposition of pending cases, and avoid congested court calendars. Link

v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Here, Petitioner was given thirty days to pay the

filing fee and specifically warned that failure to comply could result in the dismissal of his petition. 

Despite multiple orders, he still has not complied or otherwise responded. Because he failed to

follow court orders or otherwise prosecute his case, his habeas petition should be dismissed.

IV. RECOMMENDATION

Leave to proceed in forma pauperis should be denied, and the habeas petition should be

dismissed under Fed. R. Civ. P. 41(b) without prejudice for failure to prosecute or follow orders of

the court, unless Petitioner pays the $5 filing fee within the fourteen-day time frame for objecting

to this recommendation, or by some other deadline set by the Court.

SIGNED this 25th day of July, 2022.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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 INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

A copy of these findings, conclusions and recommendation shall be served on all parties in

the manner provided by law. Any party who objects to any part of these findings, conclusions and

recommendation must file specific written objections within 14 days after being served with a copy. 

See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify

the specific finding or recommendation to which objection is made, state the basis for the objection,

and specify the place in the magistrate judge’s findings, conclusions and recommendation where the

disputed determination is found. An objection that merely incorporates by reference or refers to the

briefing before the magistrate judge is not specific. Failure to file specific written objections will

bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate

judge that are accepted or adopted by the district court, except upon grounds of plain error. See

Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

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