United States District Court, S.D. West Virginia, Charleston Division
JUSTIN B. ANDERSON, Petitioner,
JOE COAKLEY, Warden, Hazelton USP, Respondent.
PROPOSED FINDINGS AND RECOMMENDATION
A. Eifert United States Magistrate Judge.
before the Court is Petitioner's pro se Petition
for a Writ of Habeas Corpus under 28 U.S.C. § 2241. (ECF
No. 1). This matter is assigned to the Honorable Thomas E.
Johnston, United States District Judge, and by Standing Order
has been referred to the undersigned United States Magistrate
Judge for the submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). For the reasons that follow, the undersigned
respectfully RECOMMENDS that the petition be
DISMISSED, without prejudice, pursuant to
Federal Rule of Civil Procedure 41(b) and L. R. Civ. P.
41.1., and this action be removed from the docket of the
March 18, 2019, Petitioner Justin B. Anderson
(“Anderson”) filed a petition for habeas relief
pursuant to 28 U.S.C. § 2241 and an Application to
Proceed Without Prepayment of Fees and Costs. (ECF Nos. 1,
2). The case was docketed, assigned to the Honorable Thomas
E. Johnston, United States District Judge, and referred to
the undersigned United States Magistrate Judge for findings
of fact and recommendations for disposition. (ECF No. 3). On
March 28, 2019, the undersigned entered an Order denying the
Application to proceed in forma pauperis and
directing Petitioner to pay the requisite $5.00 filing fee by
May 3, 2019. (ECF No. 4). Petitioner was advised that a
failure to comply with the Order might result in a
recommendation of dismissal. (Id.). According to the
docket sheet, Petitioner received the Order, but he did not
pay the filing fee.
more than two months had elapsed without any communication
from Petitioner, the undersigned issued an Order to Show
Cause on June 17, 2019. (ECF No. 5). Petitioner was given
notice that a recommendation of dismissal for failure to
prosecute and failure to comply with a court order would be
issued in thirty day, unless Petitioner showed good cause for
retaining the matter on the court's docket and paid the
$5.00 filing fee. (Id.). The docket reflects that
Petitioner received a copy of the Order to Show Cause.
(Id.). Moreover, according to the Bureau of Prisons
website, Petitioner remains incarcerated at Hazelton USP, the
facility at which he was housed when he filed the petition
for habeas relief. See www.bop.gov/inmateloc/.
Consequently, there is no reason to believe that Anderson
missed receipt of the orders due to a transfer.
receiving two court orders instructing Anderson to pay the
filing fee, he has failed to do so. Furthermore, Petitioner
has made no effort to communicate with the Court to explain
his failures to comply. Lastly, Petitioner has taken no
action to prosecute his claim since filing the petition
nearly five months ago.
authority of a federal trial court to dismiss a
plaintiff's action with prejudice because of his failure
to prosecute cannot seriously be doubted.” Link v.
Wabash R. Co., 370 U.S. 626, 629 (1962). As the United
States Supreme Court explained in Link, such a
sanction is necessary to “prevent undue delays in the
disposition of pending cases and to avoid congestion in the
calendars of the District Courts” Id. at
629-30. Federal Rule of Civil Procedure 41(b) codifies the
district court's inherent power, providing that a
complaint may be involuntarily dismissed “[i]f the
plaintiff fails to prosecute or to comply with these rules or
a court order.” Similarly, under this Court's Local
Rule of Civil Procedure 41.1, when it appears that a party
has no interest in further prosecution of his civil action:
[T]he judicial officer may give notice to all counsel and
unrepresented parties that the action will be dismissed 30
days after the date of the notice unless good cause for its
retention on the docket is shown. In the absence of good
cause shown within that period of time, the judicial officer
may dismiss the action.
appropriateness of a dismissal that is not voluntarily sought
by a party “depends on the particular circumstances of
the case.” Ballard v. Carlson, 882 F.2d. 93,
95 (4th Cir. 1989). When assessing whether to impose the
sanction of dismissal, the court should consider four
factors, including: (1) the degree of personal responsibility
on the part of the plaintiff; (2) the amount of prejudice to
the defendant caused by the delay in prosecution; (3) the
presence or absence of a history of plaintiff deliberately
proceeding in a dilatory fashion; and (4) the effectiveness
of sanctions less drastic than dismissal. Davis v.
Williams, 588 F.2d 69, 70 (4th Cir. 1978). “A
district court need not engage in a rigid application of this
test, however, when a litigant has ignored an expressed
warning that failure to comply with an order will result in
the dismissal of his claim.” Taylor v.
Huffman, Case no. 95-6380, 1997 WL 407801, at *1 (4th
Cir. 1997) (unpublished).
considered each of these factors in turn, the undersigned
concludes that dismissal is warranted. A review of the docket
demonstrates that Anderson received two orders alerting him
to the requirement of a $5.00 filing fee, which he can
clearly afford. Indeed, according to the Bureau of Prisons,
Anderson receives average monthly deposits of $230.83. (ECF
No. 1 at 2). Anderson was advised in these orders that his
failure to pay the fee would likely result in dismissal of
the action. Notwithstanding the orders, Anderson never
bothered to pay the fee, dismiss the action, or communicate
with the Court to explain his apparent lack of interest in
the habeas petition he filed. Anderson was given more than
ample time to comply with the orders, but inexplicably has
failed to do so. These failures add up to a case history of
Anderson proceeding in a deliberately dilatory fashion.
Anderson's case has been pending on the court's
docket for nearly five months, and he has been given more
than four months to accomplish the Court's directive;
yet, Anderson has failed to do so. Thus, Anderson is entirely
responsible for the delay in prosecution. As a rule, a delay
in prosecution causes some measure of prejudice to the
defendants. Given that Anderson has wholly disregarded court
orders, has made no effort to pursue his case since March
2019, and has failed to follow up with the Court in nearly
five months, a sanction less severe than dismissal plainly
will not be effective. See Ballard, 882 F.2d at
a dismissal is warranted, the undersigned
FINDS that dismissing the petition with
prejudice would be an unnecessarily severe sanction.
Fed.R.Civ.P. 41(b) provides that a dismissal for failure to
prosecute “operates as an adjudication on the
merits” unless the dismissal order states otherwise.
Given that Anderson's grounds for relief have never been
reviewed on the merits, the undersigned concludes that a
dismissal, without prejudice, would be most appropriate.
Proposal and Recommendation
stated reasons, the undersigned respectfully
PROPOSES that the presiding District Judge
confirm and accept the foregoing findings and
RECOMMENDS that the petitions be
DISMISSED, without ...