United States District Court, E.D. Arkansas, Jonesboro Division
following Recommended Disposition
(“Recommendation”) has been sent to Chief United
States District Judge Brian S. Miller. You may file written
objections to all or part of this Recommendation. If you do
so, those objections must: (1) specifically explain the
factual and/or legal basis for your objection; and (2) be
received by the Clerk of this Court within fourteen (14) days
of the entry of this Recommendation. The failure to timely
file objections may result in waiver of the right to appeal
questions of fact.
November 6, 2017, Nickelas Necessity Brewer
(“Brewer”), an Arkansas Department of Correction
inmate incarcerated in the Bowie County Correctional Center
in Texarkana, Texas, filed this Petition for a Writ of Habeas
Corpus in the United States District Court for the Eastern
District of Texas. Doc. 1. On December 28, 2017, the
case was transferred to this Court. Doc. 8. Because
Brewer had not paid the $5.00 filing fee or filed a request
to proceed in forma pauperis, the Court did not
order service of the Petition.
on January 5, 2018, the Court entered an Order giving Brewer
until February 5, 2018, to either: (1) pay the $5.00 filing
fee in full; or (2) file a properly completed Application to
Proceed In Forma Pauperis. Doc. 9 at 2. The
Court advised Brewer that if he failed “to timely and
properly comply with this Order, ” his habeas action
would “be dismissed, without prejudice, pursuant to
Local Rule 5.5(c)(2).” Id.
failed to respond to the Court's January 5, 2018 Order.
February 20, 2018, the Court entered a second Order giving
Brewer an additional opportunity to comply with the
Court's January 5 Order. Doc. 10. The
Court's February 20 Order established a new deadline of
March 6, 2018, for Brewer to comply.
failed to respond to the Court's February 20
now March 13, 2018, and Brewer has not filed anything with
this Court since his case was transferred here on December
28, 2017. He has ignored two Court Orders and deadlines
directing him to either pay the filing fee or submit an
Application to Proceed In Forma Pauperis. Thus, the
record makes it clear that Brewer has violated his
obligations under Local Rule 5.5(c)(2), ignored two Court
Orders, and has failed to prosecute this action
THEREFORE RECOMMENDED THAT this Petition for Writ of Habeas
Corpus, Doc. 1, be DISMISSED WITHOUT PREJUDICE
pursuant to Fed.R.Civ.P. 41(b) and Local Rule 5.5(c)(2).
FURTHER RECOMMENDED THAT a Certificate of Appealability be
DENIED. See 28 U.S.C. § 2253(c)(1)-(2); § 2254 Rule
In his Petition, Brewer
alleged that the ADC had improperly transferred him to the
Bowie County Correctional Center. Doc. 1. The Court
in the Eastern District of Texas concluded that, because
Brewer's incarceration in Texas was due to an Arkansas
state court conviction and not the result of any process
issued by a Texas state court, the Petition would be more
appropriately adjudicated in the Eastern ...