SIMS v. UNITED STATES OF AMERICA

Filing 12

ORDER DISMISSING without prejudice 1 Petition for Writ of Habeas Corpus. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 2/16/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
EARL SIMS,
Petitioner
VS.
UNITED STATES OF AMERICA,
Respondent.
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: CIVIL NO. 5:16-CV-0364-MTT
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ORDER OF DISMISSAL
This case is currently before the Court due to Petitioner Earl Sims’ repeated failure
to comply and/or respond to the orders of the United States Magistrate Judge. Petitioner,
an inmate confined at Macon State Prison in Oglethorpe, Georgia, filed the present action,
pursuant to 28 U.S.C. § 2241, and sought leave to proceed without payment of the filing
fee. After a review of Petitioner’s financial submissions, the Magistrate Judge denied
Petitioner’s motion to proceed in forma pauperis and ordered that he pay the $5.00 filing
fee. See Order, Oct. 4, 2016 (ECF No. 10). The time allowed for payment of the fee,
however, expired without any response from Petitioner. The Magistrate Judge thus next
ordered Petitioner to show cause why his habeas claims should not be dismissed for failure
to comply. See Show Cause Order, Jan. 10, 2017 (ECF No. 11). Petitioner was given
fourteen days to respond to the Show Cause Order and advised that failure to respond
would result in a dismissal of his petition. Id.
The time for responding for the Show Cause Order has now expired, and Petitioner

still has not paid the $5.00 filing fee; nor has he otherwise contacted to the Court to explain
why he is unable to do so. The district court has in fact not received anything from
Petitioner since July 7, 2016.
It is thus assumed that Petitioner is no longer interested in pursuing this action. For
this reason, and because of Petitioner’s repeated failure to comply and diligently prosecute
his claims, his application for habeas relief may be properly dismissed. See Fed. R. Civ.
P. 41(b); Brown v. Tallahassee Police Dep’t, 205 F. App’x 802, 802 (11th Cir. 2006) (“The
court may dismiss an action sua sponte under Rule 41(b) for failure to prosecute or failure
to obey a court order.”) (citing Lopez v. Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544
(5th Cir. 1978)).

The above-captioned action is therefore DISMISSED WITHOUT

PREJUDICE to Petitioner’s right to re-file his claims at a later time.
SO ORDERED, this 16th day of February 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT