IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTHUR MORRISON, #05032635, )

Petitioner, )

)

v. ) 3:05-CV-1511-N

)

STATE OF TEXAS, )

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, this cause has been referred to the United States Magistrate Judge. The

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

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for a writ of habeas corpus brought by a county inmate

pursuant to 28 U.S.C. § 2254.

Parties: At the time of filing this action, Petitioner was incarcerated at the Dallas County

Jail. His address or place of confinement is presently unknown. Respondent is the State of

Texas. No process has been issued in this case, pending preliminary screening.

Findings and Conclusions: On August 8, 2005, the court issued a notice of deficiency and

order to Petitioner, notifying him that he had failed to pay the filing fee or submit a request to

proceed in forma pauperis, and that his habeas corpus pleadings were not filed on the appropriate

form. The order directed Petitioner to cure the deficiency within thirty days or his petition would

be dismissed for failure to prosecute. On August 25, 2005, the deficiency order was returned to

 

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the court with the notation “not in Dallas County Jail.” Apparently Petitioner was discharged

from custody or transferred to another penal unit between the date on which he filed his petition

and the date on which the magistrate judge’s order was returned as being undeliverable. As of

the date of this recommendation, Petitioner has neither notified the court of his current address,

nor complied with the August 8, 2005 order.

Rule 41(b), of the Federal Rules of Civil Procedure, allows a court to dismiss an action

sua sponte for failure to prosecute or for failure to comply with the federal rules or any court

order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). “This authority [under Rule 41(b)]

flows from the court's inherent power to control its docket and prevent undue delays in the

disposition of pending cases.” Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir.

1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386 (1962)). 

Petitioner has been given ample opportunity to pay the filing fee or submit a request to

proceed in forma pauperis, and to submit a petition on the appropriate form. However, he has

failed to follow the court’s order. Therefore, the court should dismiss this action without

prejudice for want of prosecution pursuant to Rule 41(b). See Larson, 157 F.3d at 1031-32.

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss the petition

without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b). A

copy of this recommendation will be mailed to Petitioner.

Signed this 20th day of September, 2005.

 ____________________________________

WM. F. SANDERSON, JR.

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of

plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions

of law accepted by the district court.

 

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