Khamisi et al v. Deters et al

Filing 6

REPORT AND RECOMMENDATIONS signed by Magistrate Judge Stephanie K. Bowman on 2/13/18. It is RECOMMENDED that this matter be DISMISSED for lack of prosecution. Objections to R&R due by 2/27/2018. (eh)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification at the address listed on the docket and also to Petitioner Jelani Khamisi at the Hamilton County Justice Center.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KIMBERLY KHAMISI,
KAIA KHAMISI, AYINDE KHAMISI,
and JELANI KHAMISI,
Petitioners,

Case No. 1:17-824

Dlott, J.
Bowman, M.J.

vs.
JOSEPH DETERS, et al.
Respondents.

REPORT AND
RECOMMENDATION

Petitioners have filed individual motions for leave to proceed in forma pauperis (see
Docs. 1-4) in connection with a pro se submission titled “Verified Emergency Temporary
Restraining Order and Preliminary Injunction of Quasi-Judicial Proceedings,” seeking an order
requiring “Respondents to immediately release Claimants that are incarcerated and to dismiss the
criminal indictments and arrests [sic] warrants for lack of jurisdiction” (Doc. 1-1, at PageID 12).
On January 2, 2018, this Court entered a Deficiency Order. (Doc. 5). In the Order, the
Court construed petitioners’ submission as a petition for habeas corpus relief under 28 U.S.C.
§ 2241 and addressed various issues that required attention before the matter could proceed. (See
Doc. 5, at PageID 29). Specifically, the Court indicated that: (1) multiple petitioners generally
are not permitted to file a single habeas petition 1; (2) the in forma pauperis applications
submitted by petitioners are incomplete because they were signed by a third-party who has not
demonstrated authority to act as a “next friend” of petitioners 2; (3) it appears from the face of the
habeas corpus petition that the petition may be subject to dismissal without prejudice because it
is premature and/or petitioners have not exhausted their state court remedies prior to filing this

1

See Acord v. California, No. 1:17-cv-1089, 2017 WL 4699835, at *1 (E.D. Cal. Oct. 19, 2017) (citing cases).
See Tate v. United States, 72 F. App’x 265, 266 (6thCir. 2003) (setting forth requirements for a putative “next
friend”).

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action 3; and (4) petitioner Jelani Khamisi has not signed the petition. (See Doc. 5, at PageID 2932). The Court directed petitioners to show cause, within thirty days of the date of the Order,
why the instant case should not be dismissed without prejudice as premature or on the ground
that petitioners have not exhausted available administrative remedies. (Doc. 5, at PageID 32).
The Court indicated that if any petitioner responded with information indicating that the action
should not be dismissed, the Court would sever the petitioner’s claim and require the petitioner
to either pay the $5 fee required to commence a habeas action, or submit to the Court a renewed
in forma pauperis application. The Court further ordered petitioner Jelani Khamisi to submit a
signed copy of the petition with any response to the Order (Doc. 5) that he filed. Petitioners
were also advised that failure to respond to the Deficiency Order within the requisite thirty-day
period will result in the dismissal of the case for want of prosecution. (Doc. 5, at PageID 32).
To date, more than thirty days after the Court’s January 2, 2018 Order, petitioners have
failed to respond to the Order. 4
District courts have the inherent power to sua sponte dismiss civil actions for want of
prosecution “to manage their own affairs so as to achieve the orderly and expeditious disposition
of cases.” Link v. Wabash R.R., 370 U.S. 626, 630-631 (1962). Failure of a party to respond to
an order of the Court warrants invocation of the Court’s inherent power in this federal habeas
corpus proceeding. See Fed. R. Civ. P. 41(b); see also Rule 11, Rules Governing Section 2254
Cases in the United States District Courts, 28 U.S.C. foll. § 2254.

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Under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court “must
promptly examine” habeas petitions forwarded by the clerk for initial review and “must dismiss” a habeas petition
“if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the
district court.” See 28 U.S.C. foll. § 2254.

4

It appears that in lieu of complying with the Court’s January 2, 2018 Deficiency Order, the parties have filed a new
civil rights lawsuit. See Kijai Khamisi, et al. v. Deters, et al., No. 18-87 (S.D. Ohio).

2

Accordingly, because petitioners have failed to respond to the Court’s Deficiency Order
issued on January 2, 2018, this case should be DISMISSED for lack of prosecution.
It is therefore RECOMMENDED that this matter be DISMISSED for lack of
prosecution.

The Clerk of Court is DIRECTED to send a copy of this Report and

Recommendation to petitioners Kimberly Khamisi, Kaia Khamisi, and Ayinde Khamisi at the
address provided by petitioners and to send a copy of this Report and Recommendation to
petitioner Jelani Khamisi at the Hamilton County Justice Center address that he provided to the
Court in Case No. 17-cv-819. 5
IT IS SO RECOMMENDED.
s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

5

Petitioner Jelani Khamisi has filed in this Court another habeas corpus petition under 28 U.S.C. § 2241 in which he
asserts that he is in pre-trial custody on the underlying charges at the Hamilton County Justice Center. See Jalani
Khamisi v. Hamilton County, et al., Case No. 17-cv-819 (S.D. Ohio) (Doc. 1). This Court has issued a Report and
Recommendation in that case to dismiss without prejudice to refiling after petitioner has exhausted all available
state-court remedies. (See Case No. 17-cv-819 (Doc. 2)).

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
KIMBERLY KHAMISI,
KAIA KHAMISI, AYINDE KHAMISI,
and JELANI KHAMISI,
Petitioners,

Case No. 1:17-824

Dlott, J.
Bowman, M.J.

vs.
JOSEPH DETERS, et al.
Respondents.
NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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