United States District Court, E.D. Louisiana
FINDINGS AND RECOMMENDATION
C. WILKINSON, JR. UNITED STATES MAGISTRATE JUDGE.
Jimmy Woodrow Magee, filed this petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his 2014
Washington Parish convictions for forcible rape and second
degree kidnapping. Rec. Doc. No. 1, Petition. He is serving
concurrent sentences of twenty-five (25) years in prison.
Id., p. 1.
notice dated September 24, 2018, Record Doc. No. 5, the clerk
of this court required Magee to submit either the $5.00
filing fee or a completed pauper application within
twenty-one (21) days of the date of the notice. The record
indicates that the clerk mailed this notice to petitioner at
the address he provided on the petition, and the envelope has
not been returned as undeliverable. Magee has not responded
to the notice, paid the filing fee or filed a completed
addition, Magee has not notified the clerk or the court that
he has been transferred or that his address has changed. All
litigants are obligated to keep the court advised of any
address change. Local Rules 11.1 and 41.3.1.
41(b) of the Federal Rules of Civil Procedure provides that a
court may in its discretion dismiss any action based on the
failure of the petitioner to prosecute or comply with any
order of the court. Hulsey v. Texas, 929 F.2d 168,
171 (5th Cir. 1991); McCullough v. Lynaugh, 835 F.2d
1126, 1127 (5th Cir. 1988); Brinkmann v. Dallas County
Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir. 1987).
In applying the sanction of dismissal, courts have
traditionally considered the extent to which the petitioner,
rather than his counsel, is responsible for the delay or
failure to comply with the court's order. Markwell v.
County of Bexar, 878 F.2d 899, 902 (5th Cir. 1989);
Price v. McGlathery, 792 F.2d 472, 474-75 (5th Cir.
1986). Since the petitioner is proceeding in this case in
proper person, it is apparent that this court must weigh his
actions alone in considering dismissal of this action under
Rule 41(b). A pro se litigant is not exempt from compliance
with relevant rules of procedural and substantive law.
Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. 1981);
Edwards v. Harris County Sheriff's Office, 864
F.Supp. 633, 637 (S.D. Tex. 1994). A pro se litigant who
fails to comply with procedural rules has the burden of
establishing excusable neglect, which is a strict standard
requiring proof of more than mere ignorance. Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988);
Birl, 660 F.2d at 593.
failure of a pro se litigant to notify the district court of
an address change may be considered by the district court as
an additional cause for dismissal for failure to
prosecute.” Lewis v. Hardy, 248 Fed.Appx. 589,
2007 WL 2809969, at *4 n.1 (5th Cir. 2007).
court has attempted through the clerk's notice of
deficiency to have petitioner provide the filing fee or
pauper application necessary to prosecute his case. He has
been given more than sufficient time to fully comply with the
filing requirements. He has failed to do so. Petitioner's
failure to respond to the notice clearly reflects a failure
on his own part to prosecute. This record of failure to
comply with the clerk's requests and court rules
establishes a clear record of continuing delay or
contumacious conduct, including the aggravating factor that
it has been caused by and is exclusively attributable to
petitioner himself, justifying dismissal. See Torns v.
Miss. Dept. of Corr., 262 Fed.Appx. 638, 639 (5th Cir.
2008); Raborn v. Inpatient Management Partners,
Inc., 278 Fed.Appx. 402, 404-05 (5th Cir. 2008);
Aucoin v. K-Mart, 943 F.2d 6, 8-9 (5th Cir. 1991)
(upholding trial court's dismissal for failure to
prosecute the slip-and-fall case of a plaintiff who failed to
appear as ordered for a status conference).
effort to afford Magee one final opportunity to respond, I
have issued these findings and recommendation to the
presiding United States District Judge. Petitioner is advised
that he may object to the Magistrate Judge's proposed
findings and recommendation within fourteen (14) days from
the date of service of this report. Petitioner is advised
that any objection should be in writing and filed with the
Clerk of the United States District Court, Eastern District
of Louisiana, 500 Poydras Street, New Orleans, Louisiana
70130, on a written document containing the caption of this
lawsuit. It is suggested to petitioner that his objection
should contain a short summary of the reasons that he failed
to comply with the notice of deficiency. It is further
suggested that he should also provide the court with either
the $5.00 filing fee or a completed application to proceed in
is advised that failure to file written objections to the
Magistrate Judge's Findings and Recommendation may and
probably will result in dismissal of his suit. A party's
failure to file written objections to the proposed findings,
conclusions, and recommendation in a magistrate judge's
report and recommendation within fourteen (14) days after
being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the
unobjected-to proposed factual findings and legal conclusions
accepted by the district court, provided that the party has
been served with notice that such consequences will result
from a failure to object. Douglass v. United Servs. Auto.
Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc)
(citing 28 U.S.C. § 636(b)(1)).
RECOMMENDED that, if the petitioner, Jimmy
Woodrow Magee, does not file written objections to these
findings and recommendation, his complaint be dismissed with
prejudice for failure to prosecute.