Greene v. Kansas, State of

Filing 9

ORDER ENTERED: Petitioner's motion 3 for leave to proceed in forma pauperis is granted. This action is dismissed and all relief is denied, without prejudice, for failure to show exhaustion of state court remedies. Petitioner's additional motions 6 , 7 & 8 are denied as moot. Signed by Senior District Judge Sam A. Crow on 7/6/2011. (Mailed to pro se party Andrew Greene by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
ANDREW GREENE,
Petitioner,
v.

CASE NO.

11-3108-SAC

STATE OF KANSAS,
Respondent.
O R D E R
Upon screening this petition for writ of habeas corpus
filed by a state prisoner, the court gave Mr. Greene time to
satisfy

the

statutory

prerequisites

for

proceeding

in

forma

pauperis and to show cause why this action should not be dismissed
for failure to exhaust all available state court remedies prior to
filing an action in federal court.

The time in which petitioner

was required to comply with the court’s Order has expired and
nothing has been filed by Mr. Greene to show cause why this action
should not be dismissed due to his failure to exhaust.
“Rule 41(b) authorizes a district court, upon a defendant’s
motion,

to

order

the

dismissal

of

an

action

for

failure

to

prosecute as well as for failure to comply with the Federal Rules
of Civil Procedure or ‘a court order’.”

Young v. U.S., 316

Fed.Appx. 764, 771 (10th Cir. Mar. 12, 2009)(citing Fed.R.Civ.P.
41(b)).

“This rule has been interpreted as permitting district

courts to dismiss actions sua sponte when one of these conditions
is met.”

Id. (citing Link v. Wabash R.R. Co., 370 U.S. 626, 630-31

(1962); Olsen v. Mapes, 333 F.3d 1199, 1204 n. 3 (10th Cir. 2003)).

“In addition, it is well established in this circuit that a
district court is not obligated to follow any particular procedures
when dismissing an action without prejudice under Rule 41(b).
at *6 (citations omitted).

Id.

The court concludes that this action

must be dismissed on account of petitioner’s failure to comply with
the court’s Order entered on June 14, 2011, requiring him to show
cause why this action should not be dismissed for failure to
exhaust.

Mr. Greene is again cautioned that he should immediately

proceed in a proper manner in state court.
Mr. Greene has submitted financial information in support
of his motion to proceed in forma pauperis, although it is for two
rather than the six months required by federal statute.

This

motion is granted based upon the information currently before the
court.
IT IS THEREFORE BY THE COURT ORDERED that petitioner’s
Motion for Leave to Proceed in forma pauperis (Doc. 3) is granted
and this action is dismissed and all relief is denied, without
prejudice, for failure to show exhaustion of state court remedies.
IT IS FURTHER ORDERED that petitioner’s additional motions
for appointment of counsel in this court (Docs. 6,7,8) are denied
as moot.1
IT IS SO ORDERED.
Dated this 7th day of July, 2011, at Topeka, Kansas.

1

In order to seek appointment of counsel to perfect an appeal in state
court, Mr. Greene must file a motion in the state appellate court.

2

s/Sam A. Crow
U. S. Senior District Judge

3