McLevis v. Brott

Filing 4

REPORT AND RECOMMENDATION that: 1. Petitioner's application to proceed in forma pauperis, 2 , be DENIED; and 2. This action be DISMISSED WITHOUT PREJUDICE. Objections to R&R due by 7/15/2009. Signed by Magistrate Judge Franklin L. Noel on 7/1/09. (jam)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA JASON LEE McLEVIS, Petitioner, v. Sheriff JOEL L. BROTT, Respondent. The above-named Petitioner commenced this action by filing an application for habeas corpus relief under 28 U.S.C. § 2241. The matter has been referred to this Court for report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1. For the reasons discussed below, it is recommended that this action be dismissed without prejudice. On May 6, 2009, Petitioner filed a habeas corpus petition that presented claims pertaining to his incarceration in the Sherburne County Jail in Elk River, Minnesota. (Docket No. 1.) It was readily apparent to the Court, however, that Petitioner was not actually challenging the fact or duration of his confinement, but rather, he was challenging the conditions of his confinement. Because habeas corpus is not an appropriate remedy for a prisoner's "conditions of confinement" claims, the original petition was summarily dismissed (without prejudice) pursuant to Rule 4 of the Rules Governing Section 2254 Cases In The United States District Courts. (See Order dated May 11, 2009; [Docket No. 3].) Petitioner was granted leave to file an amended pleading, to be prepared and submitted as a non-habeas civil rights complaint. He was also directed to pay the initial partial filing fee prescribed by 28 U.S.C. § 1915(b)(1) ­ in this case, $8.00. The Court's REPORT AND RECOMMENDATION Civil No. 09-1061 (JNE/FLN)

order expressly advised Petitioner that if he did not file an amended pleading, and pay his initial partial filing fee, by June 5, 2009, he would be deemed to have abandoned this action, and it would be recommended that the action be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute. The deadline for complying with the Court's prior order in this matter has now expired, and Petitioner has not filed a civil complaint, nor has he paid his initial partial filing fee. In fact, Petitioner has not communicated with the Court on this matter at all since he filed his original habeas corpus petition. Therefore, it is now recommended, in accordance with the Court's prior order in this matter, that Petitioner be deemed to have abandoned this action, and that the action be dismissed without prejudice pursuant to Fed. R. Civ. P. 41(b). See Henderson v. Renaissance Grand Hotel, 267 Fed.Appx. 496, 497 (8th Cir. 2008) (unpublished opinion) ("A district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order."); Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962) (recognizing that a federal court has the inherent authority to "manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases"). RECOMMENDATION Based upon the above, and upon all the records and proceedings herein, IT IS HEREBY RECOMMENDED that: 1. Petitioner's application to proceed in forma pauperis, (Docket No. 2), be DENIED; and 2. This action be DISMISSED WITHOUT PREJUDICE. Dated: July 1, 2009 s/ Franklin L. Noel FRANKLIN L. NOEL United States Magistrate Judge 2

Pursuant to the Local Rules, any party may object to this Report and Recommendation by filing with the Clerk of Court and serving on all parties, on or before July 15, 2009, written objections which specifically identify the portions of the proposed findings or recommendations to which objection is being made, and a brief in support thereof. A party may respond to the objecting party*s brief within ten days after service thereof. All briefs filed under the rules shall be limited to 3500 words. A judge shall make a de novo determination of those portions to which objection is made. This Report and Recommendation does not constitute an order or judgment of the District Court, and it is, therefore, not appealable to the Circuit Court of Appeals.

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