IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOSEPH KELLY DINGLER, )

# 00149118, )

Petitioner, )

vs. ) No. 3:22-CV-1252-D (BH)

)

ROCKWALL COUNTY COURT #2, et al., )

Respondents. ) Referred to U.S. Magistrate Judge1

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Based on the relevant filings and applicable law, the case should be DISMISSED for failure

to prosecute or follow orders of the court.

I. BACKGROUND

On June 9, 2022, a handwritten “Petition for Writ of Habeas Corpus Petition for Federal

Asylum under 28 U.S.C. § 2254” was received from the petitioner, a frequent filer. (See doc. 2.) 

Because it appeared to challenge his pretrial detention instead of a state conviction, the filing was

properly construed as a petition for writ of habeas corpus under 28 U.S.C. § 2241 instead of § 2254.

(See doc. 3.) By Notice of Deficiency and Order dated June 10, 2022, the petitioner was notified

that he had neither paid the $5 filing fee nor submitted a motion to proceed in forma pauperis (IFP),

and that he needed to complete and file a form petition under 28 U.S.C. § 2241. (See id.) He was

ordered to file the § 2241 form, and to either pay the fee or file an IFP motion, within thirty days. 

(Id.) The notice specifically stated that a failure to comply with the notice could result in the

dismissal of the petition for failure to prosecute or to follow court orders. After more than thirty

days from the date of that notice had passed, but the petitioner had not paid the fee, filed an IFP

motion, or filed a completed § 2241form, on July 18, 2022, it was recommended that the case be

1

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

Case 3:22-cv-01252-D-BH Document 19 Filed 11/21/22 Page 1 of 4 PageID 142
dismissed for failure to prosecute or follow court orders. (See doc. 5.) 

On July 21, 2022, the petitioner filed a document stating that he had been released from

custody and had not received the Notice of Deficiency and Order. (See doc. 9.) The recommendation

that the case be dismissed was vacated, and by Second Notice of Deficiency and Order dated July

22, 2022, the petitioner was again ordered to file his petition on the correct § 2241 form, and to

either pay the fee or file an IFP motion, within fourteen days. (See docs. 10, 11.) The notice

specifically stated that a failure to comply with the notice could result in the dismissal of the petition

for failure to prosecute or to follow court orders. (Id.) The petitioner ultimately filed an amended

petition on the proper form on August 16, 2022, but the form was not fully completed and presented

no claims. (See doc. 15.) It stated, “See handwritten claims”, under each listed ground, but there

were no handwritten claims or attachments that set forth or even identified any claims. (Id.) He also

filed an IFP motion on August 16, 2022, and he was granted IFP status on August 19, 2022. (See

docs. 16-17.)

By Third Notice of Deficiency and Order dated August 19, 2022, the petitioner was again

ordered to file his § 2241 petition on the correct form within fourteen days. (See doc. 18.) The

notice specifically stated that a failure to comply with the notice could result in the dismissal of the

petition for failure to prosecute or to follow court orders. (Id.) Well more than fourteen days from

the date of the third notice have passed, but the petitioner has not or filed a completed § 2241form

or anything else in this case.

II. 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,

2

Case 3:22-cv-01252-D-BH Document 19 Filed 11/21/22 Page 2 of 4 PageID 143
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, three separate notices of deficiency have

advised the petitioner of the issues with his habeas petition and provided him opportunities to file

a completed § 2241 petition on the appropriate form. Each notice specifically warned that failure

to comply could result in the dismissal of his petition. Despite the passage of five months, he still

has not complied with the notice and order to file a proper § 2241 petition, and he has not otherwise

responded to the last notice dated August 19, 2022. Because he failed to comply with the notices

of deficiency and order, his petition should be dismissed without prejudice for failure to prosecute

or follow orders of the court.

III. RECOMMENDATION

The petition should be dismissed under Fed. R. Civ. P. 41(b) without prejudice for want of

prosecution or failure to follow orders of the court, unless the petitioner files a completed § 2241

form within the fourteen-day time frame for objecting to this recommendation, or by some other

deadline set by the Court.

SIGNED this 21st day of November, 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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