Smith v. Director, TDCJ-CID

Filing 7

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re 1 Petition for Writ of Habeas Corpus filed by Lee Smith. It is therefore recommended that the petition be dismissed without prejudice. Fed. R. Civ. Proc. 41(b); Rule 41, Local Rules for the Eastern District of Texas. Signed by Magistrate Judge Don D. Bush on 5/1/2012. (kls, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

LEE DOUGLAS SMITH, JR., #01725728

§

VS.

§

THE STATE OF TEXAS

§

CIVIL ACTION NO. 4:12cv150

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, an inmate confined in the Michael Unit in Tennessee Colony, Texas, proceeding
pro se, brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition
was referred for findings of fact, conclusions of law and recommendations for the disposition of the
case.
On March 21, 2012, this Court ordered Petitioner to either pay the $5 filing fee or submit an
application to proceed in forma pauperis along with the in forma pauperis data sheet. He has not
paid the $5 filing fee or submitted the appropriate forms as of this date. He has failed to prosecute
this case.
The exercise of the power to dismiss for failure to prosecute is committed to the sound
discretion of the Court and appellate review is confined solely in whether the Court's discretion was
abused. Green v. Forney Eng’g Co., 589 F.2d 243, 247 (5th Cir. 1979); Lopez v. Aransas County
Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978). Not only may a district court dismiss for want
of prosecution upon motion of a defendant, but it may also, sua sponte, dismiss an action whenever
necessary to achieve the orderly and expeditious disposition of cases. Anthony v. Marion County
1

Gen. Hosp., 617 F.2d 1164, 1167 (5th Cir. 1980). In the present case, Petitioner has failed to comply
with the Court’s order. Therefore, the case should be dismissed for failure to prosecute.
Recommendation
It is therefore recommended that the petition be dismissed without prejudice. Fed. R. Civ.
Proc. 41(b); Rule 41, Local Rules for the Eastern District of Texas.
Within fourteen (14) days after receipt of the magistrate judge's report, any party may serve
and file written objections to the findings and recommendations contained in the report.
A party's failure to file written objections to the findings, conclusions and recommendations
contained in this Report within fourteen days after being served with a copy shall bar that party from
.

de novo review by the district judge of those findings, conclusions and recommendations and, except
on grounds of plain error, from appellate review of unobjected-to factual findings and legal
conclusions accepted and adopted by the district court. Douglass v. United States Auto Ass'n, 79
F.3d 1415, 1430 (5th Cir. 1996) (en banc).
SIGNED this 1st day of May, 2012.
.

____________________________________
DON D. BUSH
UNITED STATES MAGISTRATE JUDGE

2