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Benzo v. United States

United States District Court, D. Minnesota

December 8, 2014

KENNETH W. BENZO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

REPORT AND RECOMMENDATION

STEVEN E. RAU, Magistrate Judge.

Petitioner Kenneth W. Benzo filed a petition for a writ of habeas corpus under 28 U.S.C. ยง 2241. In an order dated October 22, 2014, this Court observed Benzo's petition was unclear about whether he had first exhausted available state remedies before seeking federal habeas relief. See ECF No. 3 at 2 (citing Sacco v. Falke, 649 F.2d 634, 635-36 (8th Cir. 1981)). Accordingly, this Court ordered Benzo to file an affidavit no later than November 24, 2014 showing how he had exhausted all available state remedies, failing which it would be recommended that this action be dismissed for failure to prosecute. See Fed.R.Civ.P. 41(b).

That deadline has now passed, and Benzo has not filed the required affidavit. Indeed, Benzo has not communicated with the Court at all about this case since this Court's October 22 order. Accordingly, this Court now recommends, in accordance with its prior order, that this action be dismissed without prejudice under Rule 41(b) for failure to prosecute. See Henderson v. Renaissance Grand Hotel, 267 Fed.App'x 496, 497 (8th Cir. 2008) (per curiam) ("A district court has discretion to dismiss an action under Rule 41(b) for a plaintiff's failure to prosecute, or to comply with the Federal Rules of Civil Procedure or any court order.").

RECOMMENDATION

Based upon the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED THAT:

1. This action be DISMISSED WITHOUT PREJUDICE under Fed.R.Civ.P. 41(b) for failure to prosecute.
2. Petitioner Kenneth W. Benzo's application to proceed in forma pauperis [ECF No. 2] be DENIED AS MOOT.

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