UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA
September 22, 2011
MICHAEL AUSTIN, PETITIONER
SUPERINTENDENT WILLIAMSON, RESPONDENT
The opinion of the court was delivered by: Malachy E. Mannion United States Magistrate Judge
(JONES, D.J.) (MANNION, M.J.)
REPORT AND RECOMMENDATION*fn1
On May 5, 2011, the petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2254. (Doc. No. 1). The petitioner failed to pay the filing fee or file an application to proceed in forma pauperis . A 30 day Administrative Order was issued and on May 18, 2011 the petitioner filed a incorrect motion to proceed in forma pauperis. (Doc. No. 4) On June 1, 2011 the court issued an order directing the petitioner to submit the $5.00 filing fee or the appropriate in forma pauperis form which was provided to him. (Doc. No. 5). In that order the court made clear that if the petitioner fails to submit the filing fee it will be recommended that the action be dismissed. As of this date, the petitioner has not responded to the court's order.
The petitioner's failure to respond in any way constitutes a failure to prosecute this action and therefore this action is subject to dismissal pursuant to Fed.R.Civ.P. 41(b), which states in pertinent part: "If the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."
The Third Circuit has long held that Rule 41(b) does not prohibit the sua sponte dismissal of actions against a defendant.
As was said in Link v. Wabash R.R., where the plaintiff argued that F.R.C.P. 41(b) by negative implication prohibits involuntary dismissal except on motion by the defendant, no restriction on the district court's power should be implied: "The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."
Kenney v. Cal. Tanker Co., 381 F.2d 775, 777 (3d Cir. 1967) (quoting Link v. Wabash R.R.. Co., 370 U.S. 626, 630-31 (1962)).
In the instant action, the court can not properly control its docket, move this action forward and properly protect the rights of all parties if the petitioner fails to comply with orders issued by this court. Moreover, such conduct should not be condoned in light of the large prisoner dockets presently pending before the federal courts, all of which require prompt and thorough review.
Finally, since the petitioner has not responded in any way to the courts last order and has made no contact with the court whatsoever, justifies dismissal of this action.
On the basis of the foregoing, IT IS RECOMMENDED THAT: the instant action be DISMISSED pursuant to Fed.R.Civ.P. 41(b).
Malachy E. Mannion
N O T I C E
Any party may obtain a review of the magistrate judge's above proposed determination pursuant to Rule 72.3, M.D.PA, which provides: 7 2 . 3
REVIEW OF REPORTS AND RECOMMENDATIONS OF MAGISTRATE JUDGES ADDRESSING CASE DISPOSITIVE MOTIONS
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.