Crowley v. Warden Southern Ohio Correctional Facility

Filing 3

REPORT AND RECOMMENDATIONS - re 1 - It is therefore RECOMMENDED that, in the absence of timely action by Crowley - either paying the 5.00 filing fee or filing an in forma pauperis application - his Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED, without prejudice to renewal, and that the case be terminated on the docket of this Court. Objections to R&R due by 2/6/2012. Signed by Magistrate Judge Sharon L Ovington on 1/18/2012. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

BRYANT L. CROWLEY,
Petitioner,

:
:
Case No. 3:11cv00431

-vs-

:

WARDEN, Southern Ohio Correctional :
Facility,
:
Respondent.
:

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

REPORT AND RECOMMENDATIONS

Petitioner Bryant L. Crowley, an inmate at the Southern Ohio Correctional
Facility, seeks a writ of habeas corpus under 28 U.S.C. §2254.
When Crowley filed his petition on December 8, 2011, he did not pay the required
$5.00 filing fee or submit an application to proceed in forma pauperis. See 28 U.S.C.
§§1914(a), 1915. The Court therefore directed him to do one or the other by January 3,
2012, and placed him on notice that if he did not either pay the $5.00 filing fee or submit
an in forma pauperis application, his case may be dismissed for want of prosecution.
(Doc. #2).
Crowley has not responded to the Order and has neither paid the required $5.00
filing fee nor submitted an application to proceed in forma pauperis. He has therefore

failed to comply with both a statutory mandate, see 28 U.S.C. §§1914(a), 1915, and an
Order of this Court, thus subjecting his petition to dismissal. See Culler v. Board of
Prison Terms, 405 Fed.Appx. 263, 264 (9th Cir. 2010); McCray v. Johnson, 66
Fed.Appx. 508 (4th Cir. 2003); cf. Jourdan v. Jabe, 951 F.2d 108 (6th Cir. 1991)
(affirming decision to dismiss civil rights case due to the pro se plaintiff’s failure to
adhere to readily comprehended deadlines and his pattern of delay).
In addition, except for filing his original petition, Crowley has not filed any
pleading, motion, or other document; he has not sought an extension of time; and he has
not otherwise prosecuted this case. Dismissal of his petition is therefore warranted due to
his failure to prosecute. Cf. Link v. Wabash R.R., 370 U.S. 626, 630-31 (1962) (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.”).
Because the federal courts generally prefer to adjudicate cases on the merits,
Crowley is placed on notice that if he timely responds (within the 17-day period he has to
file Objections) to this Report and Recommendations by either paying the $5.00 filing fee
or submitting an application to proceed in forma pauperis, the problem supporting the
present recommended dismissal would no longer exist.
It is therefore RECOMMENDED that, in the absence of timely action by
Crowley – either paying the $5.00 filing fee or filing an in forma pauperis application –
his Petition for Writ of Habeas Corpus (Doc. #1) be DISMISSED, without prejudice to
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renewal, and that the case be terminated on the docket of this Court.

January 18, 2012
s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). 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 Recommendations are based in whole or in part
upon matters occurring of 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 fourteen days after being
served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).

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