Charles Hardy, Jr. v. Shawn Phillips

Summary

The United States District Court for the Eastern District of Tennessee dismisses Charles Hardy, Jr.’s 28 U.S.C. § 2254 habeas petition without prejudice under Federal Rule of Civil Procedure 41(b) after he failed to pay the filing fee despite a court order and warning. The court determines that dismissal is warranted under the applicable Rule 41(b) factors. It denies a certificate of appealability, certifies that an appeal would not be taken in good faith, and denies leave to appeal in forma pauperis.

Holdings

1. The action was properly dismissed without prejudice under Rule 41(b) because petitioner failed to comply with the court's order to pay the filing fee and failed to prosecute the action despite a clear warning that noncompliance would result in dismissal.
2. A certificate of appealability will not issue because reasonable jurists would not debate the court's determination that the action was properly dismissed under Rule 41(b).
3. Petitioner was denied leave to appeal in forma pauperis because the court certified that any appeal would not be taken in good faith and would be totally frivolous.

Questions Presented

1. Whether the district court should dismiss the § 2254 action under Federal Rule of Civil Procedure 41(b) because petitioner failed to pay the filing fee after being ordered and warned to do so.
2. Whether a certificate of appealability should issue from the procedural dismissal.
3. Whether petitioner should be permitted to appeal in forma pauperis.

Disposition

dismissed