Roberts v. Cox

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

TIMOTHY M. ROBERTS, 4:20-CV-04187-KES

Petitioner,

vs. ORDER FOR SERVICE AND J.W. COX, IN HIS CAPACITY AS TO SHOW CAUSE WARDEN OF YANKTON FEDERAL PRISON CAMP;

Respondent.

Petitioner Timothy M. Roberts, an inmate at the Yankton Federal Prison Camp, in Yankton, South Dakota, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 and a motion to proceed in forma pauperis. The court directs the petition in this case be served and that a response be filed. A § 2241 petitioner must exhaust administrative remedies before filing. Mathena v. United States, 577 F.3d 943, 946 (8th Cir. 2009); Thompson, 297 Fed. Appx. at 562; United States v. Chappel, 208 F.3d 1069 (8th Cir. 2000). In his submissions, Mr. Roberts states he is still waiting for a response on his request for administrative remedy. Therefore, the parties will be directed to show cause why the petition should not be dismissed for failure to exhaust administrative remedies. Accordingly, IT IS ORDERED that: (1) petitioner’s motion to proceed in forma pauperis (Doc. 2) is granted. Petitioner shall pay the $5.00 filing fee by December 23, 2020.

(2) the Clerk of Court shall serve upon respondent and the United States Attorney for the District of South Dakota a copy of the petition, attachments to the petition, and this order; (3) That both respondent and Mr. Roberts shall show cause no later than December 23, 2020, why Mr. Roberts petition should not be dismissed without prejudice for failure to exhaust his administrative remedies. Mr. Roberts is notified that failure to respond to the above order to show cause may result in dismissal of his petition in this court.

DATED this 2nd day of December, 2020. BY THE COURT:

VERONICA L. DUFFY A United States Magistrate Judge