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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

ESTEVAN VILLANUEVA,

Petitioner,

vs. Case No. 5:09cv266/SPM/MD

WALTER MCNEIL, 

Respondent.

REPORT AND RECOMMENDATION

This cause is before the court upon referral from the clerk. Petitioner initiated

this action on August 4, 2009 by filing of a petition for writ of habeas corpus (doc.

1), which he later amended (doc. 4). Petitioner is challenging a disciplinary

conviction he received at Apalachee Correctional Institution on June 18, 2009. (Doc.

4). At the time petitioner filed his original petition, he sought leave to proceed in

forma pauperis. (Doc. 2). On August 18, 2009, the court entered an order denying

the motion to proceed in forma pauperis without prejudice, because it was not filed

on the court form and was incomplete. (Doc. 3). Petitioner was given thirty (30) days

in which to either pay the $5.00 filing fee or file a complete application to proceed in

forma pauperis. 

Petitioner responded by filing another motion to proceed in forma pauperis. 

(Doc. 5). But that, too, was deficient. Accordingly, on September 14, 2009, the court 1

entered an order deferring ruling on that motion. (Doc. 6). Petitioner was advised

of the deficiency and ordered to resolve the filing fee issue within thirty (30) days by

Petitioner failed to submit a copy of his trust fund account statement for the six-month period

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immediately preceding the filing of his habeas corpus petition. Instead, he submitted an account

statement for only a one-month period, August of 2009.
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either correcting the deficiency or paying the $5.00 filing fee. He was further

directed to provide the court with two service copies of his amended petition and

attachments. The court expressly warned petitioner that failure to timely comply

with the order would result in dismissal of this action. (Doc. 6).

In response, on September 25, 2009 petitioner filed another motion to proceed

in forma pauperis. (Doc. 7). This motion was deficient in the same respects as his

previous motion. Accordingly, on September 29, 2009 the court entered an order 2

deferring ruling on that motion for the same reasons it had deferred ruling on

petitioner’s previous motion. (Doc. 8). The court explicitly advised petitioner that

he had until October 14, 2009 in which to comply with the court’s September 14,

2009 order. 

After receiving no response from petitioner, the court entered an order on

October 29, 2009, directing petitioner to show cause within twenty (20) days why his

case should not be dismissed for failure to comply with an order of the court. (Doc.

9). To date, petitioner has not responded, nor has he complied with the court’s

September 14, 2009 order.

Accordingly, it is respectfully RECOMMENDED:

1. That this case be DISMISSED WITHOUT PREJUDICE for plaintiff’s failure

to comply with an order of the court.

2. That the clerk be directed to close the file.

At Pensacola, Florida, this 18 day of December, 2009. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

Petitioner failed to submit a copy of his inmate account statement for the period specified in

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the court’s September 14, 2009 order (March 1, 2009 - July 31, 2009.

Case No: 5:09cv266/SPM/MD
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NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed

within fourteen days after being served a copy thereof. Any different deadline that

may appear on the electronic docket is for the court’s internal use only, and does not

control. A copy of objections shall be served upon all other parties. Failure to

object may limit the scope of appellate review of factual findings. See 28 U.S.C. §

636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 5:09cv266/SPM/MD