Thomas v. Warden Warren Correctional Institution

Filing 7

ORDER declining to adopt 4 Report and Recommendation; the Petitioner is ordered to submit $5.00 filing fee within 30 days of the entry of this Order or result in dismissal. Signed by Judge Michael R. Barrett on 4/5/13. (Attachments: # 1 Certified Mail Receipt) (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARLIN THOMAS,

CASE NO.: 1:12-cv-878

Petitioner,

Barrett, J.
Bowman, M.J.

v.
WARDEN, WARREN CORRECTIONAL
INSTITUTION,
Defendant.

OPINION AND ORDER
This matter is before the Court on the Magistrate Judge's Report and
Recommendation ("Report") in which it is recommended that Petitioner's November 13,
2012 pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be
dismissed for lack of prosecution due to the failure to submit an in forma pauperis
application or pay the $5.00 filing fee required to initiate the action within 30 days of the
Magistrate Judge's December 3, 2012 Deficiency Order. (Doc. 4).
The parties were given proper notice pursuant to Federal Rule of Civil Procedure
72(b), including notice that the parties may waive further appeal if they fail to file
objections in a timely manner. See United States v. Walters, 638 F.2d 947, 949-50 (6th
Cir. 1981). 1 Petitioner timely filed his Objections to the Report. (See Doc. 6).
In the December 12, 2012 Deficiency Order, the Magistrate Judge notified
Petitioner that he had to pay the $5.00 filing fee or file a motion for leave to proceed
without prepayment of fees within thirty days of the Order. (Doc. 2). She further notified

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Notice was attached to the Report regarding objections. (Doc. 4, p. 3).

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Petitioner that his "failure to comply with this Order will result in the dismissal of the
action for want to prosecution." (Doc. 2). In light of that Order, Petitioner should have
been diligent in determining whether his in forma pauperis application had been
properly filed within the prescribed timeframe. As the Magistrate Judge correctly found,
Petitioner's failure to do so is grounds for dismissing the case for lack of prosecution.
In his objections, Petitioner contends that he hand-delivered his completed
application to proceed in forma pauperis to the Warren Correctional Institution's prison
staff according to the institutional procedures before the 30-day period expired from the
Court's December 3, 2012 Deficiency Order, but that the prison staff did not submit it to
the Court. (Doc. 6, p. 1). He requests that the Court decline to dismiss his petition and
instead order the Warren Correctional Institution to forward the completed in forma
pauperis application or provide an alternative order regarding the same.
Considering the statements of Petitioner in his objections, along with the lack of
evidence before the Court showing that Petitioner did not submit the materials as
required by the institutional procedures, the Court declines to adopt the Report (Doc. 4)
and concludes that Petitioner should be given an additional thirty (30) days to submit his
application to proceed in forma pauperis or pay the $5.00 filing fee.
Accordingly, the Court DECLINES TO ADOPT the Report (Doc. 4) and ORDERS
that Petitioner submit an in forma pauperis application or pay the $5.00 filing fee within
thirty (30) days of entry of this Order. Petitioner is advised that failure to comply with
this Order within the additional thirty (30) day timeframe will result in dismissal of this
action for lack of prosecution.

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IT IS SO ORDERED.

s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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