Day v. Rardin

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
EMORY DAY,
Petitioner,
vs.
ERIC RARDIN,
Respondent.
2:25-CV-12804-TGB-CI
HON. TERRENCE G. BERG
OPINION AND ORDER
DISMISSING CASE FOR
FAILURE TO CORRECT
DEFICIENCY AND DENYING
REQUEST TO REINSTATE
ORDER (ECF NO. 2) AS MOOT
On September 5, 2025, Petitioner Emory Day filed a pro se petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No. 1. On
September 16, 2025, Magistrate Judge David R. Grand issued an Order
to Correct Deficiency (“Deficiency Order”) in which Day was ordered to
submit a $5.00 fee for filing a habeas corpus petition or an application to
proceed in forma pauperis within twenty-one days of the order. ECF No.
4. Petitioner Day has failed to comply with the Court’s Deficiency Order
and 	consequently 	this 	action 	will 	be 	DISMISSED 	WITHOUT
PREJUDICE. 	Furthermore, 	the 	Court 	DENIES 	AS 	MOOT 	Day’s
request to reinstate order against being shipped/transferred, ECF No. 2,
until Day can argue a § 2241 petition.
Day’s Petition is subject to dismissal because he failed to comply
with the Court’s Deficiency Order. If a habeas petitioner does not comply
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with a court’s directions in a deficiency order, the district court must
presume that the prisoner is not entitled to proceed in forma pauperis,
“assess the full filing fee, and dismiss the case for want of prosecution.”
Gravitt v. Tyszkiewicz, 14 F. App’x 348, 349 (6th Cir. 2001) (citing McGore
v. Wrigglesworth, 114 F.3d 601, 605 (6th Cir.1997)). Here, the Deficiency
Order provided clear instructions for Day to submit either the $5.00 filing
fee or an application to proceed in forma pauperis. The Deficiency Order
also expressly warned Day that failure to comply with the Court’s
instructions could result in dismissal of his action. Day was required to
comply with 	the 	Deficiency 	Order by October 7, 	2025. 	Despite the
additional time and leeway given to Day as an incarcerated pro se party,
he failed to comply with the Court’s Deficiency Order.
Therefore, 	this 	case 	is 	hereby 	DISMISSED 	WITHOUT
PREJUDICE. 	Day’s 	request 	to 	reinstate 	order 	against 	being
shipped/transferred until he can argue a § 2241 petition, ECF No. 2, is
DENIED AS MOOT. It is further ordered that an appeal from this
decision would be frivolous and could not be taken in good faith. 28 U.S.C.
§ 1915(a)(3). Accordingly, a certificate of appealability and leave to
appeal in forma pauperis are DENIED.
IT IS SO ORDERED.
_s/Terrence G. Berg____________
TERRENCE G. BERG
Dated: October 31, 2025 	UNITED STATES DISTRICT JUDGE
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