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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF TEXAS

TYLER DIVISION

MICHAEL MARTINEZ, #01710420 §

VS. § CIVIL ACTION NO. 6:23cv371

WARDEN B. RODRIGUEZ §

REPORT AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Michael Martinez, a former prisoner confined at the East Texas Treatment 

Facility within the Texas Department of Criminal Justice (TDCJ), proceeding pro se, filed this 

habeas corpus proceeding challenging the validity of a parole revocation proceeding. The case was 

referred to the undersigned United States Magistrate Judge for findings of fact, conclusions of law, 

and recommendations for the disposition of the case. 

On August 17, 2023, the undersigned issued an order directing Petitioner to file an 

amended petition to state facts and to indicate whether he sought to proceed in habeas corpus or 

civil rights—within thirty days from receipt of the order, (Dkt. #7). The order warned Petitioner

that the failure to comply may result in the dismissal of his lawsuit. A copy of this order was sent 

to Petitioner at his last-known address. To date, however, Petitioner neither submitted an amended 

petition as directed nor communicated with the Court. A search for Petitioner within TDCJ’s online 

database indicates that Petitioner has been released; however, he failed to file an updated mailing 

address as required. 

A district court may dismiss an action for the failure of a litigant to prosecute or to comply 

with any order of the court. Fed. R. Civ. P. 41(b); see also McCullough v. Lynaugh, 835 F.2d 

1126, 1127 (5th Cir. 1988) (“The court possesses the inherent authority to dismiss the action sua 

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sponte, without motion by a defendant.”). The district court has both specific and inherent power 

to control its own docket “to control the disposition of the causes on its docket with economy of 

time.” See U.S. v Colomb, 419 F.3d 292, 299 (5th Cir. 2005); see also Miller v. Thaler, 434 F. 

App’x 420, 421 (5th Cir. 2011) (unpublished).

Here, Petitioner Martinez failed to comply with the order directing him to file an amended 

petition and to indicate whether he sought to proceed under habeas corpus or civil rights. He also 

failed to file an updated mailing address, which evinces his failure to prosecute his case. 

Petitioner’s failure to comply with an order of the Court and to prosecute his case are not actions

that threaten the judicial process—thereby rendering a dismissal with prejudice unwarranted. 

Therefore, upon consideration of all factors, the Court has determined that the interests of justice 

are best served by a dismissal of this case without prejudice. 

RECOMMENDATION

Accordingly, it is recommended that the above-styled action be dismissed, without 

prejudice, for Petitioner’s failure to comply with an order of the Court and to prosecute his case. 

The Court further recommends that Petitioner be denied a certificate of appealability sua sponte, 

which would refer to this case only and would not prevent refiling. 

Within fourteen (14) days after receipt of the Magistrate Judge’s Report, any party may 

serve and file written objections to the findings and recommendations contained in the Report.

A party’s failure to file written objections to the findings, conclusions and 

recommendations contained in this Report within fourteen days after being served with a copy 

shall bar that party from de novo review by the district judge of those findings, conclusions and 

recommendations and, except on grounds of plain error, from appellate review of unobjected-to 

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factual findings and legal conclusions accepted and adopted by the district court. Douglass v. 

United Servs. Auto Ass’n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

So ORDERED and SIGNED this 1st day of November, 2023.

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