IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ERIK FUHRMAN, ID # 1124944, )

Petitioner, )

vs. ) No. 3:05-CV-2130-N (BH)

) ECF

DOUGLAS DRETKE, Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge are as follows:

I. BACKGROUND

Petitioner is currently incarcerated in the Texas prison system. On September 2, 2005, the

Court received a two-page document in which petitioner complains about an unspecified state

conviction. The Court has construed the action as arising under 28 U.S.C. § 2254 and inserted

Douglas Dretke as respondent. On November 15, 2005, the Court issued a Notice of Deficiency and

Order. It therein notified petitioner that he had not paid the requisite filing fee nor submitted a

request to proceed in forma pauperis. It further notified petitioner that he had not submitted his

petition on the appropriate form. It granted him twenty days to cure the deficiencies and warned

him that the failure to do so would result in a recommendation that his petition be dismissed for

failure to prosecute. To date, petitioner has filed nothing further in this case. Nor has he paid the

requisite filing fee. 

 

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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,

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). Petitioner has failed to comply with the Order of

November 15, 2005, that he file this action on the appropriate standard form and pay the filing fee

or submit a request to proceed in forma pauperis within twenty days. Accordingly, the Court should

dismiss this action without prejudice for petitioner’s failure to prosecute the action.

III. RECOMMENDATION

For the foregoing reasons, it is recommended that the Court dismiss the instant action

without prejudice for want of prosecution pursuant to Fed. R. Civ. P. 41(b). 

SIGNED this 28th day of April, 2006. 

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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