IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

AUNDREY BERNARD MOORE, #1035610, )

Petitioner, )

)

v. ) 3:06-CV-0140-D

)

DOUGLAS DRETKE, Director 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, 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 state inmate

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is presently incarcerated at the Briscoe Unit of the Texas Department

of Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Dilley, Texas. 

Respondent is the Director of the TDCJ-CID. No process has been issued in this case.

Findings and Conclusions: On January 24, 2006, the Magistrate Judge 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. The order directed Petitioner to cure the deficiency

within thirty days or his petition would be dismissed for failure to prosecute. As of the date of

this recommendation, Petitioner has failed to comply with the order filed on January 24, 2006.

 

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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. 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.

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 10th day of April, 2006.

 ____________________________________

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

 

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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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