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Johnson v. Jefferson Parish Correctional Center

United States District Court, E.D. Louisiana

July 2, 2019

ARCELL H. JOHNSON
v.
JEFFERSON PARISH CORRECTIONAL CENTER

         SECTION “T” (4)

          REPORT AND RECOMMENDATION

          KAREN WELLS ROBY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter was referred to a United States Magistrate Judge to conduct hearings, including an evidentiary hearing if necessary, and to submit proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(B) and (C), and as applicable, Rule 8(b) of the Rules Governing Section 2254 Cases. Upon review of the record, the Court has determined that this matter can be disposed of without an evidentiary hearing. See 28 U.S.C. § 2254(e)(2) (2006).[1]

         I. Factual and Procedural Background

         The petitioner, Arcell H. Johnson (“Johnson”), is an inmate incarcerated in the Jefferson Parish Correctional Center in Gretna, Louisiana.[2] Johnson submitted this petition for issuance of a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which, broadly construed, challenges his confinement in the Jefferson Parish Correctional Center and references without detail an Orleans Parish conviction for theft and possibly an Orleans Parish detainer related to a bank fraud charge.[3]

         Johnson, however, does not indicate the particular conviction being challenged in this case. The form § 2254 petition filed by Johnson is signed and dated, but otherwise left mostly blank or incomplete in the most relevant portions. Most importantly, Johnson fails to identify or set out any specific claims or issues for the Court to consider.

         On June 26, 2019, this Court issued and Order directing that, on or before July 24, 2019, Johnson file an amended petition in accordance with the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases.[4] The Order was mailed to Johnson at his address of record, and the envelope has not been returned as undeliverable. Johnson has not responded to the Court's July 24, 2019, Order or otherwise corrected his petition.

         II. Standard of Review under Fed.R.Civ.P. 41(b)

         Rule 41(b) of the Federal Rules of Civil Procedure specifically provides that a court may, in its discretion, dismiss a petitioner's claim for failure to prosecute or for failure to comply with the Federal Rules of Civil Procedure or any order of the court. McCullough v. Lynaugh, 835 F.2d 1126, 1127 (5th Cir. 1988); see, e.g., Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 749 (5th Cir. 1987). A Rule 41(b) dismissal is considered an adjudication on the merits. Fed.R.Civ.P. 41(b). In determining whether to dismiss a claim, courts have traditionally considered the extent to which the petitioner, rather than his counsel, has been responsible for any delay or failure to comply with a rule or order. See, e.g., 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); Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir. 1978); Ramsay v. Bailey, 531 F.2d 706, 708-09 (5th Cir. 1976). “[T]he 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, 593 n.1 (5th Cir. 2007).

         In this case, the petitioner is without counsel and is responsible for the prosecution of his case. 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); Beard v. Experian Information Solutions Inc., 214 Fed.Appx. 459, 462 (5th Cir. 2007). 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.” See Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988) (quotations omitted); Birl, 660 F.2d at 593.

         III. Discussion

         As indicated above, Johnson has not replied to the Court's Order or filed an amendment to his petition to identify the conviction being challenged and the claims being asserted. As noted in the Court's June 26, 2019, Order, Rule 2(c) in relevant part requires that a petition: “(1) specify all the grounds specify all the grounds for relief available to the petitioner; (2) state the facts supporting each ground; [and] (3) state the relief requested. . .” Johnson's petition fails to meet these requirements. Without this information, the Court cannot proceed with the case.

         Because of the sparse information in the petition, the Court is unable to issue a briefing order to a particular prosecutorial entity or to direct that briefing be filed in connection with a particular conviction or claim. This impasse is due solely to Johnson's failure to respond to the Court's June 26, 2019, Order and properly plead his case.

         Johnson was notified in the Order that his failure to file the amended petition would result in a recommendation that the petition be dismissed for failure to prosecute. Therefore, dismissal with prejudice of his complaint is proper ...


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