Opinion
Case No. 8:12-CV-2834-T-30TGW
02-04-2013
LESTER FISHER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
ORDER
This matter is before the Court, sua sponte, for review of the file. Petitioner, an inmate of the Florida penal system proceeding pro se, initiated this action by filing a Petition for Writ of Habeas Corpus (Dkt. 1). On December 28, 2012, pursuant to Local Rule 1.03(e) (M.D. Fla.2009), the Court ordered Petitioner to either pay the $5.00 filing fee or submit a request to proceed in forma pauperis on or before January 28, 2013 (Dkt. 3).
To date, Petitioner has not complied with or otherwise responded to the Court's December 28, 2012 order. Petitioner was cautioned in the order that failure to timely comply with the order "will result in the dismissal of this action without further notice." (Id.). The order was mailed to Petitioner's address of record, and it has not been returned to the Clerk as undeliverable.
Rule 41(b) of the Federal Rules of Civil Procedure provides that a court can, in its own discretion, dismiss an action based on the failure of a plaintiff to prosecute or comply with any order of the court. See also Link v. Wabash Railroad Co., 370 U.S. 626, 630-31 (1962) (finding that "[t]he authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an 'inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases."); Lopez v. Aransas County Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (finding that "[a]lthough [Rule 41(b)] is phrased in terms of dismissal on the motion of the defendant, it is clear that the power is inherent in the court and may be exercised sua sponte whenever necessary to 'achieve the orderly and expeditious disposition of cases.'").
ACCORDINGLY, the Court ORDERS that:
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute and failure to comply with the Court's December 28, 2012 order. The dismissal is without prejudice to Petitioner filing a new action under a new case number.
2. The Clerk shall terminate all pending motions, and close this case.
DONE and ORDERED in Tampa, Florida on February 4, 2013.
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JAWS S. MOODY , JR.
UNITED STATES DISTRICT JUDGE
SA:sfc
Copy to: Pro se Petitioner