BURNETT v. UNNAMED RESPONDENT

Filing 9

ORDER dismissing the Petition 1 without prejudice. Ordered by US DISTRICT JUDGE TILMAN E SELF, III on 3/26/2024. (vs) Modified on 3/26/2024 to edit text. (ggs).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
KODY K. BURNETT,

:
:
Petitioner,
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V.
:
:
UNNAMED RESPONDENT,
:
:
Respondent.
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_________________________________:

NO. 3:23-cv-00135-TES-CHW

ORDER OF DISMISSAL
Petitioner Kody K. Burnett, a prisoner in the Wheeler Correctional Facility in
Alamo, Georgia, filed a 28 U.S.C. § 2254 habeas corpus petition. Pet. for Writ of Habeas
Corpus, ECF No. 1. Petitioner also filed a motion for leave to proceed in this action in
forma pauperis. Mot. to Proceed In Forma Pauperis, ECF No. 2. Thereafter, the United
States Magistrate Judge denied Petitioner’s motion for leave to proceed in forma pauperis
and ordered Petitioner to pay the $5.00 filing fee if he wanted to proceed with this action.
Order, ECF No. 7. The Magistrate Judge gave Petitioner fourteen days to pay the filing
fee and cautioned Petitioner that his failure to do so could result in this Court dismissing
his petition. Id.
More than fourteen days passed after the Magistrate Judge entered that order, and
Petitioner did not pay the filing fee or otherwise respond to the order. As a result, the
Magistrate Judge ordered Petitioner to show cause why the Court should not dismiss this
case based on his failure to comply with the earlier order. Order to Show Cause, ECF

No. 8.

The Magistrate Judge gave Petitioner another fourteen days to respond and

cautioned him that his failure to do so would likely result in the Court dismissing the
petition. Id.
More than fourteen days have now passed since the Magistrate Judge entered the
show cause order, and Petitioner has not responded to that order. Thus, because Petitioner
has failed to comply with the previous orders or to otherwise prosecute his case, the Court
now DISMISSES the complaint WITHOUT PREJUDICE. See Fed. R. Civ. P. 41(b);
Brown v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (per curiam)
(first citing Fed. R. Civ. P. 41(b); and then citing Lopez v. Aransas Cnty. Indep. Sch. Dist.,
570 F.2d 541, 544 (5th Cir. 1978)) (“The court may dismiss an action sua sponte under
Rule 41(b) for failure to prosecute or failure to obey a court order.”).
SO ORDERED, this 26th day of March, 2024.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

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