Smith v. Parish

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS MARSHALL DIVISION JOSEPH SMITH, #1830217 § VS. § CIVIL ACTION NO. 2:17cv262 LAUREN PARISH, ET AL. § ORDER OF DISMISSAL Petitioner Joseph Smith, an inmate currently confined at the Michael Unit within the Texas Department of Criminal Justice (TDCJ), proceeding pro se, filed this Writ of Quo Warranto action, which was construed as a habeas corpus action alleging purported violations of his constitutional rights concerning purported improprieties with his criminal prosecution. The case was referred to the United States Magistrate Judge, the Honorable Roy S. Payne, for findings of fact, conclusions of law, and recommendations for the disposition of the case. On May 18, 2018, Petitioner filed a motion to amend, (Dkt. #18), his initial pleading. The Court granted the motion, (Dkt. #20), ordering Petitioner to file his amended pleading stating specific facts, explaining how his constitutional rights were violated, and how he was allegedly harmed. No amended pleading was ever filed. Therefore, on October 21, 2019, Judge Payne issued a Report, (Dkt. #21), recommending that Petitioner’s case be dismissed, without prejudice, for his failure to comply with the order to amend. Petitioner has filed timely objections, (Dkt. #22). His objections are difficult to decipher and seem to fail to respond to the crux of the issue: The failure to file an amended pleading, as Petitioner requested. The court has conducted a careful de novo review of record and the Magistrate Judge’s proposed findings and recommendations. See 28 U.S.C. §636 (b)(1) (District Judge shall “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.”). Upon such de novo review, the court has determined that the Report of the United States Magistrate Judge is correct, and Petitioner’s objections are without merit. The court further notes that guo warranto actions are brought by the State or Government—not by an individual. See Superior Oil Co. v. City of Port Arthur, 726 F.2d 203 , 205 n.1 (5th Cir. 1984); see also Wallace v. Anderson, 18 U.S. 291, 292 (1820) (Chief Justice Marshall explaining that “a writ of guo warranto could not be maintained except at the instance of the Government, and as this writ was issued by a private individual, without the authority of the Government, it could not be sustained...”). Accordingly, it is ORDERED that the Report of the United States Magistrate Judge, (Dkt. #21), is ADOPTED as the opinion of the Court. Petitioner’s objections, (Dkt. #22), are overruled. Further, it is ORDERED that Petitioner’s case is DISMISSED, without prejudice, for the failure to comply with an order of the court. Moreover, it is ORDERED that, to the extent one is required, Petitioner is DENIED a certificate of appealability sua sponte. Finally, it is ORDERED that any and all motions which may be pending in this civil action are hereby DENIED. So Ordered this Dec 27, 2019 RODNEY GILSYTRAP \ UNITED STATES DISTRICT JUDGE