Rivero et al v. US Department of Homeland Security et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ANGELICA MARIA DIAZ 	)
RIVERO, 	)
)
Petitioner, 	)
)
v. 	) 	No. CIV-26-160-SLP
)
U.S. DEPARTMENT OF 	)
HOMELAND SECURITY et al., 	)
)
Respondent. 	)
REPORT AND RECOMMENDATION
Petitioner filed this 28 U.S.C. § 2241 habeas corpus petition on January
30, 2026, on behalf of Ritzabeth Milagros Pineda Alvarado, an Immigration
and Customs Enforcement (ICE) detainee, alleging violations of Ms. Alvarado’s
Fifth Amendment due process rights and “fundamental principles of family
unity and child welfare.” Doc. 1, at 1-2, 4. Petitioner presents to the Court that
she is the grandmother and caregiver of the detainee’s child, a United States
citizen. Id. at 4. United States District Judge Scott L. Palk referred the matter
to the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B). Doc. 3. The undersigned recommends the Court dismiss
the petition without prejudice based on Petitioner’s failure to follow the Court’s
rules and orders.
I. 	Discussion.
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On February 9, 2026, the Court ordered Petitioner to pay the filing fee
or submit an in forma pauperis (IFP) application. Doc. 4. The Court also
ordered Petitioner to clarify whether she seeks “next friend” status to file the
petition on behalf of the detainee, Ms. Alvarado. Id. at 2. Along with the order,
the Clerk of Court sent Petitioner the necessary forms to comply with the
Court’s order. The undersigned warned Petitioner that if she failed to comply
with the Court’s order to cure by March 2, 2026, her case would be subject to
dismissal. Id. at 3. As of this date, Petitioner has not responded to the Court’s
order.
The Clerk of Court mailed a copy of the order and the forms to Petitioner
at the address she had provided the Court. Doc. 4 (Staff notes). The Postmaster
has not returned the mail as undeliverable. “Papers sent by the court will be
deemed delivered if sent to the last known address given to the court.”
LCvR5.4.
Under Fed. R. Civ. P. 41(b), a court may dismiss an action if the
petitioner “fails to prosecute or to comply with these rules or a court order.”
Fed. R. Civ. P. 41(b). Courts have consistently interpreted this rule to permit
sua sponte dismissal. Huggins v. Sup. Ct. of the U.S., 480 F. App’x 915, 916-17
(10th Cir. 2012); AdvantEdge Bus. Grp. v. Thomas E. Mestmaker & Assocs.,
Inc., 552 F.3d 1233, 1236 (10th Cir. 2009) (“A district court undoubtedly has
discretion to sanction a party for failing to prosecute or defend a case, or for
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failing to comply with local or federal procedural rules.” (quoting Reed v.
Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without
prejudice, the court may dismiss without attention to the non-exhaustive list
of 	factors 	that, 	by 	contrast, 	must 	inform 	a 	dismissal 	with 	prejudice.
AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2.
Petitioner appears pro se, but she must follow the same rules as any
other litigant. See Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th
Cir. 2007) (holding a pro se litigant “to the same rules of procedure as other
litigants”). The undersigned finds that Petitioner’s failure to comply with this
Court’s orders and rules, together with the Court’s inherent power to manage
judicial resources, warrants dismissal of this action without prejudice. See
Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158, 1161 n.2 (10th Cir.
2007) (noting Rule 41(b) permits courts “to dismiss actions sua sponte for a
plaintiff’s failure to . . . comply with the rules of civil procedures or court’s
orders”); Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the
inherent power of a court to dismiss suits for lack of prosecution).
II. 	Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court
dismiss this action without prejudice.
The undersigned advises Petitioner of her right to file an objection to this
Report and Recommendation with the Clerk of this Court by March 30, 2026,
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in accordance with 28 U.S.C. § 636 and Federal Rule of Civil Procedure 72. The
undersigned further advises Petitioner that failure to make timely objection to
this Report and Recommendation waives her right to appellate review of both
factual and legal questions contained herein. Moore v. United States, 950 F.2d
656, 659 (10th Cir. 1991). This Report and Recommendation disposes of the
issues referred to the undersigned Magistrate Judge in the captioned matter.
ENTERED this 9th day of March, 2026.
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