Petry v. State of Texas

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
KAYLYN BRASHUN PETRY,
#75330-509,
§
§
§
Petitioner, §
§
v. § No. 3:25-cv-03367-S (BT)
§
STATE OF TEXAS, §
§
Respondent. §
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Kaylyn Brashun Petry filed a pro se motion that the Court has construed as
a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See generally Pet.
(ECF No. 2). But Petry did not pay the $5.00 filing fee for habeas actions or apply
for leave to proceed in forma pauperis (IFP) with the required certificate of inmate
trust account. Nor did he file his habeas application on the Court’s approved form
for actions filed under 28 U.S.C. § 2254. Accordingly, the Court issued an order
and notice of deficiency (NOD) requiring Petry to correct these deficiencies by
January 9, 2026, and it supplied the forms necessary for compliance at that time.
NOD (ECF No. 4). The Court warned Petry that his failure to comply with the NOD
could result in the dismissal of this action pursuant to Federal Rule of Civil
Procedure 41(b). Id.
Petry’s deadline for compliance with the NOD has passed, but he has not
complied with the Court’s instructions or responded to the NOD.
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Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss
an action sua sponte for failure to prosecute or for failure to comply with the
federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir.
1998). “This authority [under Rule 41(b)] flows from the court’s inherent power to
control its docket and prevent undue delays in the disposition of pending cases.”
Boudwin v. Graystone Ins., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v.
Wabash, R.R. Co., 370 U.S. 626 (1962)). The Court’s authority under Rule 41(b) is
not diluted by a party proceeding pro se, as “[t]he right to self-representation does
not exempt a party from compliance with relevant rules of procedural and
substantive law.” Wright v. LBA Hosp., 754 F. App’x 298, 300 (5th Cir. 2019) (per
curiam) (quoting Hulsey v. Texas, 929 F.2d 168, 171 (5th Cir. 1991) (quoting, in
turn, Birl v. Estelle, 660 F.2d 592, 593 (5th Cir. Nov. 1981))).
Petry’s failures to pay the full filing fee or submit a proper IFP application
with a certificate of inmate trust account and to file an amended habeas application
on the Court’s approved form for filing § 2254 petitions have prevented this action
from proceeding.
Accordingly, the Court should dismiss Petry’s case without prejudice for
failure to prosecute and failure to follow Court orders. See, e.g., Wildhaber v.
United States, 2020 WL 2544021, at *1 (N.D. Tex. Apr. 20, 2020) (“Because
[plaintiff] failed to comply with the orders that he pay the filing fee or file an IFP
application with a certificate of inmate trust account, and has not otherwise
responded to it, this case should be dismissed for failure to prosecute or follow an
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order of the court.”), rec. accepted 2020 WL 2542735 (N.D. Tex. May 19, 2020);
Texas v. Hill, 2020 WL 5913669, at *1 (N.D. Tex. Sept. 14, 2020) (“The petitioner
failed to comply with the orders that he file his § 2241 petition on the appropriate
form and either pay the filing fee or submit an IFP application despite a warning
that failure to do so could result in dismissal of the case. The case should therefore
be dismissed under Rule 41(b) for failure to prosecute or follow court orders.”),
rec. accepted 2020 WL 5912417 (N.D. Tex. Oct. 6, 2020).
Recommendation
The Court should dismiss Petry’s case without prejudice
under Federal Rule of Civil Procedure 41(b) for failure to prosecute and failure to
obey Court orders.
SO RECOMMENDED.
January 13, 2026.
____________________________
REBECCA RUTHERFORD
UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of this report and recommendation shall be served on all parties in
the manner provided by law. Any party who objects to any part of this report and
recommendation must file specific written objections within 14 days after being
served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). To be specific,
an objection must identify the specific finding or recommendation to which
objection is made, state the basis for the objection, and specify the place in the
magistrate judge’s report and recommendation where the disputed determination
is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written
objections will bar the aggrieved party from appealing the factual findings and legal
conclusions of the magistrate judge that are accepted or adopted by the district
court, except upon grounds of plain error. See Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996).
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