Morgan v. United States of America et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DAVID BRIAN MORGAN,
Petitioner,
v.
UNITED STATES OF AMERICA,
et al.,
Respondent(s).
)
)
)
)
) 	Case No. CIV-26-35-R
)
)
)
)
)
REPORT AND RECOMMENDATION
Petitioner, a state prisoner appearing pro se,1 has filed an action in this Court, styling
it as a Petition for a Writ of Coram Nobis. 	(Doc. 1).2 	United States District Judge Joe
Heaton referred the matter to the undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. § 636(b)(1)(B), (C). 	(Doc. 3). 	The matter was subsequently
transferred to United States District Judge David L. Russell. 	(Doc. 6). 	Based on
Petitioner’s failure to comply with the Court’s order to cure deficiencies, the undersigned
recommends 	that 	this 	case 	be 	dismissed 	without 	prejudice 	to 	re-filing. 	If 	this
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Petitioner’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
Case 5:26-cv-00035-R Document 7 Filed 02/11/26 Page 1 of 4

2
recommendation is adopted, it would moot Petitioner’s Motion to Alter or Amend (Doc.
5), in which he objects to the referral of this matter to the undersigned.
I. 	Discussion
After an initial review of Petitioner’s filings, the undersigned advised that Petitioner’s
filing was “deficient because: (A) No filing fee ($5.00) was paid to the Court and/or in
forma pauperis motion (motion to proceed without prepayment of fees or costs) has not
been submitted for filing; and (B) the initiating document was not on the proper form and
does not supply the Court with equivalent information required by the form.” (Doc. 4, at
1). 	The undersigned ordered Petitioner to cure the deficiencies on or before January 30,
2026. (Id.) 	The undersigned warned Petitioner that “[f]ailure to comply with this Order
may result in the dismissal of this action.” 	(Id.) 	To date, Petitioner has not cured the
deficiencies.
Under Federal Rule of Civil Procedure 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); see also Huggins v. Supreme Court of the U.S., 480 F. App’x 915, 916-17 (10th
Cir. 2012) (noting that Rule 41(b) has been “consistently interpreted . . . to permit courts
to dismiss actions sua sponte for a plaintiff’s failure to prosecute”) (internal quotation
marks omitted); 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 failing to comply with local or federal
procedural rules.”) 	(internal quotation marks omitted). 	And, if dismissal is without
Case 5:26-cv-00035-R Document 7 Filed 02/11/26 Page 2 of 4

3
prejudice, the court 	may dismiss “without 	attention to any particular procedures.”
AdvantEdge Bus. Grp., 552 F.3d at 1236.
Petitioner’s failure to comply with the court’s Order leaves the court unable “to
achieve [an] orderly and expeditious disposition” of this action. Link v. Wabash R.R. Co.,
370 U.S. 626, 629-31 (1962) (discussing the “inherent power” of a court to dismiss suits
for lack of prosecution on its own initiative). 	As outlined above, the court has provided
Petitioner sufficient notice of the possibility of dismissal for failure to cure deficiencies.
Accordingly, the undersigned recommends that the Court dismiss this case without
prejudice for failure to cure the deficiencies.
II. 	Recommendation and Notice of Right to Object.
For the reasons set forth above, the undersigned recommends that the Court DISMISS
this case without prejudice to re-filing. Adoption of this Report and Recommendation will
MOOT Petitioner’s Motion to Alter or Amend. (Doc. 5).
The undersigned advises Petitioner of his right to file an objection to this
Report and Recommendation with the Clerk of Court on or before March 4, 2026,
under 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2). The undersigned also advises
Petitioner that failure to make a timely objection to this Report and Recommendation
waives the right to appellate review of both factual and legal questions contained herein.
Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
Case 5:26-cv-00035-R Document 7 Filed 02/11/26 Page 3 of 4

4
This Report and Recommendation disposes of all issues referred to the undersigned
in this matter and terminates the referral.
ENTERED this 11th day of February, 2026.
Case 5:26-cv-00035-R Document 7 Filed 02/11/26 Page 4 of 4