Hernandez-Bouza v. Warden et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
ADRIAN HERNANDEZ-BOUZA and )
MARAY GONZALEZ ESQUIVEL as next of )
Adrian Hernandez-Bouza, )
)
Petitioner, )
)
v. ) Case No. CIV-26-594-R
)
WARDEN of Diamondback Correctional )
Facility et al., )
)
Respondents. )
REPORT AND RECOMMENDATION
Adrian Hernandez-Bouza, who is currently detained by the United States
Immigration and Customs Enforcement (ICE), is named as Petitioner in this 28 U.S.C. §
2241 habeas corpus action. (ECF No. 1). A layperson named Maray Gonzalez Esquivel,
purports to have filed the petition as Petitioner’s “Next Friend.” (ECF No. 1:2 and 2).
United States District Judge David L. Russell has referred the matter to the undersigned
magistrate judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C).
See
ECF No. 7. For the following reasons, the undersigned recommends the Court dismiss the
petition without prejudice based on Petitioner’s failure to follow the Court’s rules and
orders.
On March 30, 2026, the Court concluded that Mr. Hernandez-Bouza did not sign
the Petition and Maray Gonzalez Esquivel had not shown she was authorized to sign the
Petition on Mr. Hernandez-Bouza’s behalf or that she is an attorney representing Mr.
Hernandez-Bouza. As a result, Mr. Hernandez-Bouza was required to file an amended
petition signed either (1) by a licensed attorney or (2) should he wish to proceed
pro se,
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by himself personally. Any amended petition was ordered submitted no later than April
16, 2026.
See ECF No. 9 and (Court only) entry dated March 30, 2026.
The Clerk of Court mailed a copy of the Order to Adrian Hernandez-Bouza and
Maray Gonzalez Esquivel.
See id. To date, the Postmaster has not returned the mail as
undeliverable. “Papers sent by the court will be deemed delivered if sent to the last known
address given to the court.” LCvR5.4. No additional filings have been received by the
Court.
Under Fed. R. Civ. P. 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). Courts
have consistently interpreted this rule to permit sua sponte dismissal.
Huggins v. Sup. Ct.
of the U.S., 480 F. App’x 915, 916-17 (10th Cir. 2012);
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.” (
quoting Reed v. Bennett,
312 F.3d 1190, 1195 (10th Cir. 2002))). And if dismissal is without prejudice, the court
may dismiss without attention to the non-exhaustive list of factors that, by contrast, must
inform a dismissal with prejudice.
AdvantEdge Bus. Grp., 552 F.3d at 1236 & n.2. Mr.
Hernandez-Bouza appears
pro se, but he must follow the same rules as any other litigant.
See Davis v. Kan. Dep’t of Corrs., 507 F.3d 1246, 1247 n.1 (10th Cir. 2007) (holding a
pro se litigant “to the same rules of procedure as other litigants”). The undersigned finds
that Mr. Hernandez-Bouza’s failure to comply with this Court’s orders and rules, together
with the Court’s inherent power to manage judicial resources, warrants dismissal of this
action without prejudice.
See Nasious v. Two Unknown B.I.C.E. Agents, 492 F.3d 1158,
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1161 n.2 (10th Cir. 2007) (noting Rule 41(b) permits courts “to dismiss actions sua sponte
for a plaintiff’s failure to . . . comply with the rules of civil procedures or court’s orders”);
Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962) (discussing the inherent power of
a court to dismiss suits for lack of prosecution).
RECOMMENDATION
Based on the foregoing findings, it is recommended that this action be
DISMISSED without prejudice for Petitioner’s failure to comply with this Court’s
orders. Adoption of this recommendation will moot any remaining Motions. Petitioner is
advised of his right to file an objection to this Report and Recommendation with the Clerk
of Court by May 18, 2026, in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72.
Petitioner is further advised that any failure to make timely objection to this Report and
Recommendation waives the right to appellate review of the factual and legal issues
addressed herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
This Report and Recommendation disposes of all issues and terminates the referral
to the undersigned Magistrate Judge in the captioned matter.
ENTERED on April 29, 2026.
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