1Local Rule 72.2(c)(1) provides, in pertinent part, for the

referral of non-dispositive pretrial matters in all civil

actions to Magistrate Judges for the purpose of hearing and

determining all non-dispositive motions.

IN THE UNITED STATES DISTRICT COURT FOR THE 

SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES E. HUDSON and 

DIROTHIEUS C. HUDSON, :

plaintiffs, :

vs. : CIVIL ACTION 04-0821-WS-M

CARDWELL CORPORATION, :

Defendant. :

REPORT AND RECOMMENDATION

Plaintiffs, who are proceeding pro se, filed an employment

discrimination complaint (Doc. 1) signed by each Plaintiff, and

Plaintiff James E. Hudson (hereinafter J. Hudson) filed a

Motion to Proceed Without Prepayment of Fees (Doc. 2). 

Plaintiff J. Hudson’s motion was referred to the undersigned

pursuant to 28 U.S.C. § 636(b)(1)(A) and Local Rule

72.2(c)(1).1 Due to the filing of this motion, the Court

reviewed this action under 28 U.S.C. § 1915(e)(2)(B) and

observed that Plaintiff Dirothieus C. Hudson (hereinafter D.

Hudson) had not filed a motion to proceed without prepayment of

fees, nor had he paid the $150.00 filing fee. Thereupon,

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Plaintiff D. Hudson was ordered on or before June 13, 2005, to

file such a motion or pay the $150.00 filing fee (Doc. 3). 

Plaintiff D. Hudson has not complied with this Order. It is

therefore recommended that Plaintiff’s D. Hudson’s claims be

dismissed without prejudice from this action. Notwithstanding,

this action will proceed in regard to the claims of Plaintiff

J. Hudson. 

During the Court’s initial review of this action, the

undersigned noted the action was commenced in a confused manner

(Doc. 3), in that each Plaintiff should have brought a separate

action. In an effort to rectify this situation but yet retain

control of both sets of claims, the Court ordered Plaintiff D.

Hudson to file a motion to proceed without prepayment of fees

or pay the $150.00 filing fee for his claims and advised him

that upon his compliance with the Order a separate action may

be opened for his claims. Plaintiff D. Hudson was warned that

his claims would be dismissed if he did not comply and that the

dismissal would preclude him from bringing his claims again

because the time period for bringing his claims had expired.

In the same Order the Court denied Plaintiff J. Hudson’s

Motion to Proceed Without Prepayment of Fees (Doc. 3) and

granted him leave to file another motion that corrected the

deficiencies in his present motion or to pay the $150.00 filing

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2On the correspondence side of the paper file is a copy of

an e-mail indicating both Plaintiffs appeared at the Clerk’s

Office when the filing fee was paid and that Plaintiff J.

Hudson paid the filing fee and filled out the summons form. 

This document also reflects that Plaintiff D. Hudson indicated

in a telephone conversation with Clerk’s Office personnel that

he is now living in Cleveland and therefore would not be able

to effectively pursue his case. Plaintiff D. Hudson did not

provide this information in writing to the Court after

personnel requested that he do so, which would have allowed

the Court to enter it on its docket. Furthermore, Plaintiff

D. Hudson has not provided his new address to the Court. 

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fee. In addition, Plaintiffs were ordered on or before June

13, 2005, to file, inter alia, a copy of the right-to-sue

letter that each Plaintiff received.

On June 14, 2005, the Court received a $150.00 filing fee. 

The receipt indicates that it was paid by Plaintiff J. Hudson. 

Nothing else has been received by the Court from either

Plaintiff.2

In light of Plaintiff D. Hudson’s failure to file a motion

to proceed without prepayment of fees or to pay the filing fee

or to file his right-to-sue letter within the prescribed time,

the undersigned concludes that he has abandoned the prosecution

of his claims. When claims appear to be abandoned, the Court’s

inherent power to police or manage its docket in order “to

achieve the orderly and expeditious disposition of cases” will

be used. Link v. Wabash R.R. Co., 370 U.S. 626, 629-30, 82

S.Ct. 1386, 1388, 8 L.Ed.2d 734 (1962). Pursuant to this

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3The Eleventh Circuit in Bonner v. City of Prichard, 661

F.2d 1206, 1209 (11th Cir. 1981) (en banc), adopted as binding

precedent the decisions of the former Fifth Circuit rendered

prior to October 1, 1981.

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power, the Court may impose sanctions which may range from a

reprimand to the dismissal of the action with or without

prejudice. Mingo v. Sugar Cane Growers Co-op of Fla., 864 F.2d

101, 102 (11th Cir. 1989). Furthermore, Rule 41(b) of the

Federal Rules of Civil Procedure provides for the dismissal of

an action for failure “to prosecute and to comply with the

these rules or any order of court.” Fed.R.Civ.P. 41(b);

Hildebrand v. Honeywell, 622 F.2d 179, 181 (5th Cir. 1980)

(holding a court may enter a sua sponte dismissal under

Fed.R.Civ.P. 41(b)).3 Dismissal under Rule 41(b) is warranted

only upon a “clear record of delay or wilful contempt and a

finding that lesser sanctions would not suffice.” Id.; see

Goforth v. Owens, 766 F.2d 1533, 1535 (11th Cir. 1985); Jones

v. Graham, 709 F.2d 1457, 1458 (11th Cir. 1983).

In the present action, Plaintiff D. Hudson has refused to

comply with the Court’s Order and has thereby refused to

acknowledge the authority of this Court. Furthermore, there is

no indication Plaintiff D. Hudson will comply with another

order of the Court. Thus, a monetary sanction is not

warranted. Moon v. Newsome, 863 F.2d 835, 839 (11th Cir.)

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(finding the district court was not required to select a

sanction other than dismissal where a pro se plaintiff refused

to be deposed after the magistrate judge had ordered the

plaintiff to submit to the deposition over plaintiff’s

objection), cert. denied, 493 U.S. 863, 110 S.Ct. 180, 107

L.Ed.2d 135 (1989); Bradenburg v. Beamis, 632 F.2d 120, 122

(10th Cir.) (finding the district court did not err when it

dismissed the habeas corpus/civil rights complaint for

plaintiff’s failure to follow the local rule requiring the

court’s forms be completed), cert. denied, 450 U.S. 984, 101

S.Ct. 1522, 67 L.Ed.2d 820 (1981). Accordingly, it is

recommended that Plaintiff D. Hudson’s claims be dismissed

without prejudice as a sanction for failure to prosecute and to

obey the Court’s Order because a lesser sanction will not

suffice. The Court realizes that a dismissal without prejudice

in this instance will effectively be a dismissal with prejudice

because counsel for Plaintiffs received a right-to-sue letter

on October 7, 2005 (Doc. 1, at 2). Justice v. United States, 6

F.3d 1474, 1477, 1482 (11th Cir. 1993) (affirming the dismissal

with prejudice of the second action as being barred by the

statute of limitations even though the first action was

dismissed without prejudice after the statute of limitations

had expired). Thus, Plaintiff D. Hudson will be precluded from

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proceeding in another action on his claims. 

MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation

or anything in it must, within ten days of the date of service

of this document, file specific written objections with the

clerk of court. Failure to do so will bar a de novo

determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the

factual findings of the magistrate judge. See 28 U.S.C. §

636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir.

1988); Nettles v. Wainwright, 677 F.2d 404 (5th Cir. Unit B,

1982)(en banc). The procedure for challenging the findings and

recommendations of the magistrate judge is set out in more

detail in SD ALA LR 72.4 (June 1, 1997), which provides that:

A party may object to a recommendation entered by a

magistrate judge in a dispositive matter, that is, a

matter excepted by 28 U.S.C. § 636(b)(1)(A), by

filing a “Statement of Objection to Magistrate

Judge’s Recommendation” within ten days after being

served with a copy of the recommendation, unless a

different time is established by order. The

statement of objection shall specify those portions

of the recommendation to which objection is made and

the basis for the objection. The objecting party

shall submit to the district judge, at the time of

filing the objection, a brief setting forth the

party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a

different disposition made. It is insufficient to

submit only a copy of the original brief submitted

to the magistrate judge, although a copy of the

original brief may be submitted or referred to and

incorporated into the brief in support of the

objection. Failure to submit a brief in support of

the objection may be deemed an abandonment of the

objection.

A magistrate judge’s recommendation cannot be appealed to

a Court of Appeals; only the district judge’s order or

judgment can be appealed.

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2. Transcript (applicable where proceedings tape recorded). 

Pursuant to 28 U.S.C. § 1915 and Fed.R.Civ.P. 72(b), the

magistrate judge finds that the tapes and original records in

this action are adequate for purposes of review. Any party

planning to object to this recommendation, but unable to pay

the fee for a transcript, is advised that a judicial

determination that transcription is necessary is required

before the United States will pay the cost of the transcript.

DONE this 28th day of July, 2005.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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