Opinion
C. A. 9:21-02813-HMH-MHC
10-19-2021
Edward C. Tyler, Petitioner, v. Warden Kenneth Sharp, Respondent.
REPORT AND RECOMMENDATION
MOLLY H. CHERRY UNITED STATES MAGISTRATE JUDGE
This action has been filed by Petitioner, pro se, requesting habeas corpus relief under 28 U.S.C. § 2254.
By Order dated September 10, 2021, Petitioner was given an opportunity to provide the necessary information and paperwork (payment of the five-dollar filing fee or submission of a completed Form AO-240 -application to proceed in forma pauperis) to bring the case into proper form for evaluation and possible service of process. Petitioner was warned that failure to provide the necessary information within the timetable set forth in the Order would subject the case to dismissal. See ECF No. 5. The time to bring this case into proper form has now lapsed, and Petitioner has failed to provide a response to the proper form Order or to contact the Court in any way. Based on the foregoing, it is recommended that this action be dismissed, without prejudice, in accordance with Rule 41, Fed.R.Civ.P. See Link v. Wabash R.R. Co., 370 U.S. 626 (1962); Ballard v. Carlson, 882 F.2d 93, 95-96 (4th Cir. 1989), cert. denied sub nom, Ballard v. Volunteers of America, 493 U.S. 1084 (1990) (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The Clerk shall mail this Report and Recommendation to Petitioner at his last known address. If Petitioner satisfies the requirements for proceeding with this case as is set forth in the proper form Order within the time set forth for filing objections to this Report and Recommendation, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. However, if Petitioner fails to do so, then at the end of the time for filing objections, the Clerk shall forward this Report and Recommendation to the District Judge for disposition. Ballard v. Carlson, 882 F.2d at 95 (Magistrate Judge's prior explicit warning that a recommendation of dismissal would result from Petitioner failing to obey his order was proper grounds for the district court to dismiss suit when Petitioner did not comply despite warning).
After a litigant has received one explicit warning as to the consequences of failing to timely comply with an order of a Magistrate Judge, and has failed to respond to that order, the district court may, under Fed.R.Civ.P. 41(b), dismiss the petition based upon the litigant's failure to comply with that court order. See Simpson v. Welch, 900 F.2d 33, 35-36 (4th Cir. 1990); see also Ballard, 882 F.2d at 95-96 (holding that district court's dismissal following an explicit and reasonable warning was not an abuse of discretion).
The parties are also referred to the Notice Page attached hereto.