Ell v. Bennett

Filing 9

ORDER ADOPTING 6 REPORT AND RECOMMENDATION by Judge Jamal N Whitehead. The Court APPROVES and ADOPTS IN FULL the R&R, DISMISSES WITHOUT PREJUDICE this case for failure to prosecute and failure to comply with court orders; DENIES Ell's 1 Application to Proceed In Forma Pauperis, and DIRECTS the Clerk of Court to ENTER JUDGMENT and CLOSE THIS CASE. It is so ORDERED.**3 PAGE(S), PRINT ALL**(Jaydeane Ell, Prisoner ID: 324451)(MIH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JAYDEANE FRANCIS ELL,
Plaintiff,
v.
JASON BENNETT,

CASE NO. 2:24-cv-01358-JNW
ORDER ADOPTING R&R, DENYING
APPLICATION TO PROCEED IN
FORMA PAUPERIS, AND
DISMISSING CASE

Defendant.

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This matter comes before the Court on the Report and Recommendation
(“R&R”) of the Honorable Theresa L. Fricke, U.S. Magistrate Judge, regarding pro
se Petitioner Jaydeane Francis Ell’s application to proceed in forma pauperis (IFP)
and proposed habeas petition. Dkt. No. 6.
On October 7, 2024, after reviewing Ell’s proposed habeas petition, Judge
Fricke found that “[u]nless one or more of the circumstances described in 28 U.S.C.
§ 2244(d)(1)(B)-(D) applies,” the petition was time barred. Dkt. No. 5 at 4; see 28
U.S.C. § 2244(d)(1) (“A 1-year period of limitation shall apply to an application for a
writ of habeas corpus by a person in custody pursuant to the judgment of a State
court.”); see also 28 U.S.C. § 2244(d)(1)(B)-(D) (describing circumstances that allow
ORDER ADOPTING R&R, DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND
DISMISSING CASE - 1

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the statute of limitations period to run from a date later than “the date on which the

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judgment became final”). Judge Fricke ordered Ell to show cause as to why his

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proposed habeas petition should not be dismissed on this ground. Dkt. No. 5.

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Ell failed to reply. See Dkt. Based on this failure, on November 15, 2024,

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Judge Fricke recommended dismissal of Ell’s case for failure to prosecute and

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failure to comply with a Court Order. Dkt. No. 6. Then, on January 16, 2025, Ell

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filed a proposed motion for relief from judgment, objecting to the Court’s adoption of

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the R&R, as well as to the Magistrate Judge’s entry of judgment. Dkt. No. 7.

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On February 3, 2025, the Court issued an Order to Show Cause, explaining

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that Ell’s proposed motion was mistaken: “[T]he Court ha[d] not adopted the R&R,

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and Judge Fricke did not issue judgment.” Dkt. No. 8 at 5. Nevertheless, the Court

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found that “Ell’s filing—its apparent confusedness notwithstanding—indicates that

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he has not abandoned prosecution of this action.” Id. Therefore, the Court was “not

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inclined” at that time “to dismiss for failure to prosecute.” Id. But still, the Court

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agreed with Judge Fricke’s conclusion that Ell “provides no argument as to why his

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petition should not be dismissed as time barred.” Id. The Court therefore instructed

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Ell to show cause in writing, within 30 days, as to why “one of the circumstances

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described in 28 U.S.C. § 2244(d)(1)(B)-(D)”—or equitable tolling—should save his

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claim from the applicable time bar. Id.

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The deadline for Ell’s response has passed, and he has not replied. See Dkt.

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Therefore, the Court APPROVES and ADOPTS IN FULL the R&R, Dkt. No. 6;

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DISMISSES WITHOUT PREJUDICE this case for failure to prosecute and failure

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to comply with court orders; DENIES Ell’s Application to Proceed In Forma
ORDER ADOPTING R&R, DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND
DISMISSING CASE - 2

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Pauperis, Dkt. No. 1; and DIRECTS the Clerk of Court to ENTER JUDGMENT and

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CLOSE THIS CASE.

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It is so ORDERED.

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Dated this 7th day of March, 2025.

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a

Jamal N. Whitehead
United States District Judge

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ORDER ADOPTING R&R, DENYING APPLICATION TO PROCEED IN FORMA PAUPERIS, AND
DISMISSING CASE - 3