Kemp v. Hickey

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FORT SMITH DIVISION

DAVID EARL KEMP PETITIONER

v. Civil No. 2:24-cv-02142-TLB-MEF

U. S. JUDGE SUSAN O. HICKEY1 RESPONDENT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Petitioner, David Earl Kemp (“Kemp”), filed a Petition for a Writ of Habeas Corpus Under

28 U.S.C. § 2241 on November 5, 2024. Currently before the Court is Petitioner’s failure to pay

the applicable filing fee, or to apply for leave to proceed in forma pauperis, and his failure to obey

a Court Order.

I. BACKGROUND

Kemp filed his pro se Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 on

November 5, 2024. (ECF No. 1). It was not accompanied by the payment of the applicable $5.00

filing fee or an application to proceed in forma pauperis. Accordingly, on November 5, 2024, the

Clerk sent notice to Kemp advising him that he must either pay the filing fee of $5.00, or file a

1 Petitioner names U. S. District Judge Susan O. Hickey as the Respondent in this action. A review

of the pleadings, however, shows that Petitioner is challenging his pre-trial detention pursuant to

an Order entered on October 19, 2023, committing Petitioner to the custody of the Attorney

General to hospitalize Petitioner for treatment and to determine whether there is a suitable

probability that he will be restored to the capacity necessary to permit the trial to proceed. (United

States of America v. David Earl Kemp, No. 4:23-cr-40006-001, ECF No. 33). Petitioner is

currently housed at Devens Federal Medical Center located in Ayer, Massachusetts. A Petition

for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 should properly name the petitioner’s

custodian as the respondent and should be filed in the district where the custodian is located. “The

writ of habeas corpus does not act upon the prisoner who seeks relief, but upon the person who

holds him in what is alleged to be unlawful custody.” Braden v. 30th Judicial Circuit Court of

Kentucky, 410 U.S. 484, 494-95 (1973) (internal citation omitted).

motion to proceed in forma pauperis, no later than November 19, 2024. The notice specifically

informed Kemp that “[i]f the proper fees or motion are not received for case initiating documents,

your case may be subject to dismissal.” The notice has not been returned as undeliverable. Despite

this notice, Kemp has failed to either pay the filing fee or to submit an application for leave to

proceed in forma pauperis.

II. LEGAL STANDARD

Although pro se pleadings are to be construed liberally, a pro se litigant is not excused

from complying with substantive and procedural law. Burgs v. Sissel, 745 F.2d 526, 528 (8th Cir.

1984). The local rules state in pertinent part:

It is the duty of any party not represented by counsel to promptly notify the Clerk

and the other parties to the proceedings of any change in his or her address, to

monitor the progress of the case, and to prosecute or defend the action diligently . .

.. If any communication from the Court to a pro se plaintiff is not responded to

within thirty (30) days, the case may be dismissed without prejudice. Any party

proceeding pro se shall be expected to be familiar with and follow the Federal Rules

of Civil Procedure.

Local Rule 5.5(c)(2).

Additionally, the Federal Rules of Civil Procedure specifically contemplate dismissal of a

case on the grounds that the plaintiff failed to prosecute or failed to comply with orders of the

court. Fed. R. Civ. P. 41(b); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (stating that

the district court possesses the power to dismiss sua sponte under Rule 41(b)). Pursuant to Rule

41(b), a district court has the power to dismiss an action based on “the plaintiff’s failure to comply

with any court order.” Brown v. Frey, 806 F.2d 801, 803-04 (8th Cir. 1986) (emphasis added).

III. ANALYSIS

Kemp has failed to either pay the filing fee required by 28 U.S.C § 1914(a) or file an

application to proceed in forma pauperis. Kemp has failed to comply with a Court Order.

Accordingly, pursuant to Federal Rule of Civil Procedure 41(b) and Local Rule 5.5(c)(2), Kemp’s

Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241 (ECF No. 1) should be dismissed

without prejudice for his failure to either pay the filing fee or file an application to proceed in

forma pauperis, and for his failure to comply with a Court Order and to prosecute this case.

Additionally, as noted above, Kemp is incarcerated at the Devens Federal Medical Center

located in Ayer, Massachusetts. His BOP custodian is, therefore, located in Ayer, Massachusetts,

which is situated within the Boston (Eastern) division of the United States District Court for the

District of Massachusetts. Accordingly, this Court lacks subject matter jurisdiction to hear Kemp’s

Petition for a Writ of Habeas Corpus Under 28 U.S.C. § 2241.

IV. CONCLUSION

For the reasons stated above, it is recommended that Kemp’s Petition for a Writ of Habeas

Corpus Under 28 U.S.C. § 2241 (ECF No. 1) be DISMISSED WITHOUT PREJUDICE.

The parties have fourteen (14) days from receipt of the Report and Recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. The parties are

reminded that objections must be both timely and specific to trigger de novo review by the

district court.

DATED this 25th day of November 2024.

/s/

HON. MARK E. FORD

UNITED STATES MAGISTRATE JUDGE