Brigner v. Warden, Chillicothe Correctional Institution

Filing 3

REPORT AND RECOMMENDATION re 1 Petition for Writ of Habeas Corpus filed by Alan D. Brigner in that it is RECOMMENDED that this action be DISMISSED without prejudice for want of prosecution pursuant to Rule 41(b) of the Federal Rules of Civil Procedure. Objections to R&R due by 1/30/2018. Signed by Magistrate Judge Kimberly A. Jolson on 1/16/18. (sem)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
ALAN D. BRIGNER,
CASE NO. 2:17-CV-1045
JUDGE JAMES L. GRAHAM
Magistrate Judge Kimberly A. Jolson

Petitioner,
v.
WARDEN, CHILLICOTHE
CORRECTIONAL INSTITUTION,
Respondent.

REPORT AND RECOMMENDATION
On December 1, 2017, Petitioner, a state prisoner, submitted a petition for a writ of
habeas corpus under 28 U.S.C. § 2254. (ECF No. 1.) On December 5, 2017, this Court issued
an Order noting that Petitioner had failed to submit the full filing fee or an application seeking to
proceed in forma pauperis under 28 U.S.C. § 1915(a). (ECF No. 2.) Consequently, this Court
ordered Petitioner to either pay the $5.00 filing fee or file a proper motion to proceed in forma
pauperis within thirty (30) days of the date of that Order. (Id.) The Court additionally indicated
that “[f]ailure to do so [would] result in recommended dismissal of this action for want of
prosecution.” (Id.)
More than 30 days have passed, and Petitioner has not paid the filing fees or moved to
proceed in forma pauperis.

Accordingly, it is RECOMMENDED that this action be

DISMISSED without prejudice for want of prosecution pursuant to Rule 41(b) of the Federal
Rules of Civil Procedure. Gravitt v. Tyszkiewicz, 14 F. App’x 348, 349 (6th Cir. 2001) (finding
that district court did not abuse its discretion when it dismissed habeas petition for want of
prosecution under Rule 41(b); petitioner failed to pay filing fees or seek pauper status after being
expressly warned that failure to do so might result in dismissal.)

Procedure on Objections
If any party objects to this Report and Recommendation, that party may, within fourteen
days of the date of this Report, file and serve on all parties written objections to those specific
proposed findings or recommendations to which objection is made, together with supporting
authority for the objection(s). A judge of this Court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is
made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made herein, may receive further evidence or may
recommit this matter to the magistrate judge with instructions. 28 U.S.C. 636(B)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the district judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.
Date: January 16, 2018

/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE

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