Gaines v. Lee Correctional Institution ( 2022 )

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA Damorius D. Gaines, #346524, ) C/A No. 4:22-3994-HMH-TER a/k/a Damorius Dontavis Gaines, ) a/k/a Damorius Dontavious Gaines, ) Petitioner, ) ORDER ) vs. ) ) Warden, Lee Correctional Inst., ) Respondent. ) ____________________________________________) This is an action filed by a state prisoner seeking habeas corpus relief under 28 U.S.C. § 2254. This case is before the undersigned due to Petitioner’s failure to comply with the magistrate judge’s order dated November 17, 2022, for Plaintiff to pay the fee or apply for in forma pauperis status and to complete a Petition for Writ of Habeas Corpus form.1 (ECF No. 5). A review of the record indicates that the Petitioner was ordered to submit items needed to bring this case into proper form within a time certain. Petitioner was specifically informed that if he failed to do so, this case would be subject to dismissal for failure to prosecute. The Court has received no response from Petitioner, and the time for compliance has passed. The magistrate judge’s Proper Form Order (ECF No. 5) was mailed to Petitioner at the address he provided, and has not been returned to the court. Petitioner’s lack of response to the Order indicates an intent to not prosecute this case, and subjects this case to dismissal. See Fed. R. Civ. P. 41(b)(district courts may dismiss an action if a 1 As a matter of procedural history, public records show Petitioner’s PCR is still pending in the state court; thus, even if Petitioner complied and the action were brought into proper form, Petitioner’s claims would be subject to summary dismissal, as the claims are unexhausted. See, e.g., Goss v. Williams, No. 2:18-cv-2938-BHH, 2020 WL 502635, at *2 (D.S.C. Jan. 31, 2020), appeal dismissed, 814 F. Appx. 776 (4th Cir. 2020) (dismissing pro se § 2254 petition for failure to exhaust state remedies where PCR application was still pending before state court). Petitioner fails to comply with an order of the court.); see also Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989)(dismissal with prejudice appropriate where warning given); Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982)(court may dismiss sua sponte). Accordingly, this case is dismissed without prejudice. The Clerk of Court shall close the file. IT IS SO ORDERED. s/ Henry M. Herlong, Jr. Senior United States District Judge December 20, 2022 Greenville, South Carolina NOTICE OF RIGHT TO APPEAL The Petitioner is hereby notified of the right to appeal this Order within the time period set forth under Rules 3 and 4 of the Federal Rules of Appellate Procedure. 2