United States District Court, E.D. Arkansas, Pine Bluff Division
October 2, 2014
DUWASKI PERRY ADC #123162, Petitioner,
RAY HOBBS, Respondent.
PROPOSED FINDINGS AND RECOMMENDATIONS
H. DAVID YOUNG, Magistrate Judge.
The following recommended disposition has been sent to United States District Judge D.P. Marshall Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Court Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.
If you are objecting to the recommendation and also desire to submit new, different, or additional evidence, and to have a hearing for this purpose before the District Judge, you must, at the same time that you file your written objections, include the following:
1. Why the record made before the Magistrate Judge is inadequate.
2. Why the evidence proffered at the hearing before the District Judge (if such a hearing is granted) was not offered at the hearing before the Magistrate Judge.
3. The detail of any testimony desired to be introduced at the hearing before the District Judge in the form of an offer of proof, and a copy, or the original, of any documentary or other non-testimonial evidence desired to be introduced at the hearing before the District Judge.
From this submission, the District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.
Mail your objections and "Statement of Necessity" to:
Petitioner Duwaski Perry filed a pro se petition for a writ of mandamus on August 26, 2014. Petitioner did not pay the $400.00 filing and administrative fees or file an application for leave to proceed in forma pauperis ("IFP"). On August 29, 2014, the Court entered an order directing Petitioner to either pay the filing and administrative fees or to file an IFP application, within 30 days (docket entry #2). That order also warned Petitioner that his failure to do so would result in the recommended dismissal of his petition.
More than 30 days have passed, and Petitioner has not paid the filing and administrative fees, filed a complete application for leave to proceed IFP, or otherwise responded to the order. Under these circumstances, the Court concludes that Petitioner's petition should be dismissed for failure to pay the filing and administrative fees, failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court's order. See Miller v. Benson, 51 F.3d 166, 168 (8th Cir. 1995) (District courts have inherent power to dismiss sua sponte a case for failure to prosecute, and exercise of that power is reviewed for abuse of discretion).
IT IS THEREFORE RECOMMENDED THAT:
1. Petitioner's petition be DISMISSED WITHOUT PREJUDICE for failure to pay the filing and administrative fees, failure to comply with Local Rule 5.5(c)(2), and for failure to respond to the Court's order.
2. The Court certify that an in forma pauperis appeal taken from the order and judgment dismissing this action is considered frivolous and not in good faith.