Deberry v. Tennessee Department of Corrections

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION

FREDERICK DEMETRIUS DEBERRY, ) ) Petitioner, ) ) v. ) No. 1:22-cv-01240-STA-jay ) ) TENNESSEE DEPARTMENT ) OF CORRECTIONS, LISA HELTON, ) VINCENT VANTELL, CORECIVIC ) ) Respondents. )

ORDER DIRECTING PETITIONER TO FILE AN AMENDED PETITION AND DIRECTING CLERK TO SEND FORM

On November 1, 2022, Petitioner Frederick Demetrius Deberry, a Tennessee prisoner, filed a pro se habeas corpus petition (the “Petition”) pursuant to 28 U.S.C. § 2241. (ECF No. 1.) By order dated January 24, 2023, the Court granted Deberry’s motion for leave to amend the Petition, noting that Petitioner could file an amended petition as a matter of course because no responsive pleading had yet been filed. (ECF No. 6 (citing Fed. R. Civ. P. 1(a)(1)).) The Court specified that if Petitioner wished to file an amended petition he must do so within twenty-eight days. Deberry did not file an amended petition and the time for doing so has passed. Therefore, the operative pleading before the Court is the Petition, which is ripe for preliminary review. See 28 U.S.C. § 2243; Harper v. Thoms, No. 02–5520, 2002 WL 31388736, at *1 (6th Cir. Oct. 22, 2002). A § 2241 petition “must substantially follow either the form appended to [the Habeas Rules] or a form prescribed by a local district-court rule.” Rules Governing Section 2254 Cases in the United States District Courts (“Habeas Rules”), Rule 2(d).1 This district uses the form promulgated by the Administrative Office of the United States Courts. Petitioner did not use the official form, and, thus, did not provide certain information that is relevant to preliminary review. Therefore, Petitioner is ORDERED to file an amended petition on the official form within twenty- eight (28) days of the entry date of this order. If Petitioner needs additional time to comply with

this order, he may file a motion seeking an extension of time on or before the due date for his submission. Failure to comply with any requirement of this order in a timely manner will, without further notice, result in dismissal of this action without prejudice for failure to prosecute. See Fed. R. Civ. P. 41(b). The Clerk is DIRECTED to mail Petitioner the official § 2241 habeas corpus form. IT IS SO ORDERED.

s/ S. Thomas Anderson S. THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

Date: March 3, 2023

1 The Habeas Rules apply to habeas petitions brought under 28 U.S.C. §§ 2254 and 2241. See Habeas Rule 1(b).