Pugh v. Gordy

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
EDDIE LEE PUGH, # 339948, 	*
*
Petitioner, 	*
*
vs. 	* CIVIL ACTION NO. 25-00075-JB-B
*
CHRISTOPHER GORDY, 	*
*
Respondent. 	*
REPORT AND RECOMMENDATION
This matter is before the Court on review.1 	Petitioner Eddie
Lee Pugh (“Pugh”), an Alabama prison inmate proceeding without an
attorney, 	filed 	a 	petition 	seeking 	habeas 	corpus 	relief 	pursuant
to 	28 	U.S.C. 	§ 	2254 	in 	the 	United 	States 	District 	Court 	for 	the
Northern 	District 	of 	Alabama. 	However, 	subsequent 	to 	Pugh’s
initiation of this action, he has failed to prosecute it and failed
to obey this Court’s directives. 	Accordingly, and for the reasons
set 	forth 	below, 	the 	undersigned 	recommends 	that 	Pugh’s 	§ 	2254
habeas 	petition 	(Doc. 	1) 	and 	this 	action 	be 	DISMISSED 	without
prejudice.
I. 	BACKGROUND
In 	January 	2025, 	Pugh 	commenced 	this 	action 	by 	filing 	a 	§
2254 	habeas 	petition 	in 	the 	United 	States 	District 	Court 	for 	the
1 	This 	case 	was 	referred 	to 	the 	undersigned 	Magistrate 	Judge 	for
appropriate action pursuant to 28 U.S.C. § 636(b)(1) and S.D. Ala.
GenLR 72(a)(2)(R).
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Northern 	District 	of 	Alabama. 	(Doc. 	1). 	In 	February 	2025, 	this
action was transferred to the United States District Court for the
Southern 	District 	of 	Alabama 	pursuant 	to 	28 	U.S.C. 	§ 	2241(d).
(Docs. 3, 4, 5).
The 	undersigned 	“promptly 	examine[d]” 	Pugh’s 	petition 	in
accordance 	with 	Rule 	4 	of 	the 	Rules 	Governing 	Section 	2254 	Cases
in the United States District Courts. 	In an order dated February
27, 	2025, 	the 	undersigned 	noted 	that 	Pugh 	had 	neither 	paid 	the
$5.00 	statutory 	habeas 	filing 	fee 	nor 	filed 	a 	motion 	to 	proceed
without 	prepayment 	of 	fees 	as 	required. 	(Doc. 	6 	at 	2).
Accordingly, the undersigned ordered Pugh to either pay the $5.00
filing fee or file a motion to proceed without prepayment of fees
on or before March 27, 2025. 	(Id.).
In the same order, the undersigned noted that Pugh’s petition
was 	not 	on 	the 	form 	required 	by 	this 	Court 	for 	a 	§ 	2254 	habeas
petition, 	and 	that 	the 	petition 	did 	not 	indicate 	that 	Pugh 	had
exhausted 	all 	available 	state 	remedies 	for 	his 	claim(s) 	prior 	to
seeking 	federal 	habeas 	relief. 	(Id. 	at 	2-6). 	The 	undersigned
informed 	Pugh 	that 	before 	this 	action 	could 	proceed 	further, 	he
needed to correct these deficiencies, to the extent he was able to
do 	so. 	(Id. 	at 	6). 	Thus, 	the 	Court 	ordered 	Pugh 	to 	refile 	his
petition 	on 	or 	before 	March 	27, 	2025, 	using 	the 	current 	form
required by this Court for a § 2254 habeas petition, if he wished
to proceed with this action. 	(Id.).
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The 	undersigned 	cautioned 	Pugh 	that 	if 	he 	failed 	to 	fully
comply 	with 	the 	Court’s 	order 	within 	the 	prescribed 	time, 	the
undersigned 	would 	recommend 	that 	this 	action 	be 	dismissed 	for
failure to prosecute and failure to obey the Court’s order. 	(Id.
at 	7). 	The 	undersigned 	directed 	the 	Clerk 	of 	Court 	to 	update
Pugh’s address on file to reflect his current place of confinement
(Bibb 	County 	Correctional 	Facility), 	and 	to 	send 	to 	Pugh 	at 	his
new address a copy of his original § 2254 habeas petition for his
reference, 	along 	with 	a 	copies 	of 	this 	Court’s 	current 	§ 	2254
habeas petition and IFP motion forms for his use. 	(Id.).
The 	Court’s 	February 	27, 	2025 	order 	and 	accompanying
documents were mailed to Pugh at Bibb County Correctional Facility,
and 	they 	have 	not 	been 	returned 	to 	the 	Court 	as 	undeliverable.
However, to date, Pugh has not refiled his § 2254 habeas petition
on 	this 	Court’s 	required 	form, 	despite 	being 	ordered 	to 	do 	so 	no
later than March 27, 2025. 	Nor has Pugh paid the $5.00 filing fee
or 	filed 	a 	motion 	to 	proceed 	without 	prepayment 	of 	fees, 	despite
being 	ordered 	to 	do 	one 	of 	those 	things 	no 	later 	than 	March 	27,
2025. 	Pugh 	has 	not 	requested 	additional 	time 	within 	which 	to
comply 	with 	the 	Court’s 	order, 	he 	has 	not 	indicated 	that 	he 	is
unable 	to 	comply 	with 	the 	Court’s 	order, 	and 	he 	has 	not 	provided
any explanation for his failure to timely comply with the Court’s
order. 	Additionally, an online search reveals that Pugh is still
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incarcerated 	at 	Bibb 	County 	Correctional 	Facility, 	where 	the
Court’s order and accompanying documents were sent.
II. 	DISCUSSION
A court “may sua sponte dismiss an action pursuant to Federal
Rule 	of 	Civil 	Procedure 	41(b) 	if 	the 	plaintiff 	fails 	to 	comply
with court rules or a court order.” 	Smith v. Bruster, 424 F. App’x
912, 	914 	(11th 	Cir. 	2011) 	(per 	curiam) 	(citing 	Fed. 	R. 	Civ. 	P.
41(b); 	Betty 	K 	Agencies, 	Ltd. 	v. 	M/V 	Monada, 	432 	F.3d 	1333, 	1337
(11th Cir. 2005)). 	“In addition to its power under Rule 41(b), a
court also has the inherent ability to dismiss a claim in light of
its authority to enforce its orders and provide for the efficient
disposition of litigation.” 	Zocaras v. Castro, 465 F.3d 479, 483
(11th 	Cir. 	2006) 	(citing 	Link 	v. 	Wabash 	R.R., 	370 	U.S. 	626, 	630–
31 	(1962)). 	To 	dismiss 	an 	action 	with 	prejudice 	for 	failure 	to
prosecute, 	failure 	to 	comply 	with 	the 	Federal 	Rules 	of 	Civil
Procedure, or failure to follow a court order, the court must find
“a 	clear 	record 	of 	delay 	or 	willful 	conduct 	and 	that 	lesser
sanctions 	are 	inadequate 	to 	correct 	such 	conduct.” 	Betty 	K
Agencies, 432 F.3d at 1339. 	“While dismissal is an extraordinary
remedy, dismissal upon disregard of an order, especially where the
litigant 	has 	been 	forewarned, 	generally 	is 	not 	an 	abuse 	of
discretion.” 	Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
As 	noted 	previously, 	Pugh 	has 	made 	no 	apparent 	effort 	to
comply 	with 	the 	Court’s 	order 	to 	refile 	his 	§ 	2254 	petition 	on
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this Court’s required form and to pay the $5.00 filing fee or file
a 	motion 	to 	proceed 	without 	prepayment 	of 	fees. 	Pugh 	has 	not
explained his failure to comply with the Court’s order, indicated
that he is unable to comply, or sought additional time within which
to comply. 	Pugh’s lack of response to the Court’s order suggests
that he has lost interest in and abandoned the prosecution of this
action. 	In 	light 	of 	Pugh’s 	failure 	to 	prosecute 	this 	action 	and
failure 	to 	obey 	the 	Court’s 	order, 	it 	is 	recommended 	that 	this
action be DISMISSED without prejudice pursuant to Rule 41(b) and/or
this Court’s inherent authority, as it appears no lesser sanction
will suffice to induce his compliance.
III. CERTIFICATE OF APPEALABILITY
Pursuant 	to 	Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2254
Cases, 	“[t]he 	district 	court 	must 	issue 	or 	deny 	a 	certificate 	of
appealability 	when 	it 	enters 	a 	final 	order 	adverse 	to 	the
applicant.” 	Rules 	Governing 	§ 	2254 	Cases, 	R. 	11(a). 	The 	habeas
corpus statute makes clear that an applicant is entitled to appeal
a district court’s denial of his habeas corpus petition only where
a circuit justice or judge issues a certificate of appealability.
See 	28 	U.S.C. 	§ 	2253(c)(1). 	A 	certificate 	of 	appealability 	may
issue only where “the applicant has made a substantial showing of
the denial of a constitutional right.” 	Id. at § 2253(c)(2).
Where 	habeas 	relief 	is 	denied 	on 	procedural 	grounds 	without
reaching 	the 	merits 	of 	any 	underlying 	constitutional 	claim(s), 	a
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certificate 	of 	appealability 	“should 	issue 	[only] 	when 	the
prisoner 	shows, 	at 	least, 	that 	jurists 	of 	reason 	would 	find 	it
debatable whether the petition states a valid claim of the denial
of a constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.” 	Slack v. McDaniel, 529 U.S. 473, 484 (2000). 	A prisoner
seeking a certificate of appealability “must prove something more
than the absence of frivolity or the existence of mere good faith
on 	his 	or 	her 	part.” 	Miller-El 	v. 	Cockrell, 	537 	U.S. 	322, 	338
(2003) 	(quotations 	omitted). 	However, 	a 	certificate 	of
appealability 	“does 	not 	require 	a 	showing 	that 	the 	appeal 	will
succeed.” 	Id. at 337.
After 	reviewing 	the 	issues 	presented 	in 	light 	of 	the
applicable 	standards, 	the 	undersigned 	submits 	that 	reasonable
jurists 	would 	not 	conclude 	that 	this 	Court 	is 	in 	error 	in
dismissing 	the 	instant 	petition 	without 	prejudice 	for 	failure 	to
prosecute 	and 	to 	obey 	the 	Court’s 	order, 	or 	that 	Pugh 	should 	be
allowed 	to 	proceed 	further. 	As 	a 	result, 	it 	is 	recommended 	that
Pugh be DENIED a certificate of appealability in conjunction with
the dismissal of the present § 2254 habeas petition.2
2 	Rule 	11(a) 	of 	the 	Rules 	Governing 	Section 	2254 	Cases 	in 	the
United 	States 	District 	Courts 	provides 	for 	the 	following
procedure: “The district court must issue or deny a certificate of
appealability 	when 	it 	enters 	a 	final 	order 	adverse 	to 	the
applicant. 	Before entering the final order, the court may direct
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IV. 	APPEAL IN FORMA PAUPERIS
“An 	appeal 	may 	not 	be 	taken 	in 	forma 	pauperis 	if 	the 	trial
court 	certifies 	in 	writing 	that 	it 	is 	not 	taken 	in 	good 	faith.”
28 U.S.C. § 1915(a)(3).
A 	party 	demonstrates 	good 	faith 	by 	seeking 	appellate
review of any issue that is not frivolous when examined
under 	an 	objective 	standard. 	See 	Coppedge 	v. 	United
States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed.
2d 	21 	(1962). 	An 	issue 	is 	frivolous 	when 	it 	appears
that 	“the 	legal 	theories 	are 	indisputably 	meritless.”
Carroll 	v. 	Gross, 	984 	F.2d 	392, 	393 	(11th 	Cir. 	1993)
(citations 	omitted). 	In 	other 	words, 	an 	IFP 	action 	is
frivolous, and thus not brought in good faith, if it is
“without 	arguable 	merit 	either 	in 	law 	or 	fact.” 	Bilal
v. 	Driver, 	251 	F.3d 	1346, 	1349 	(11th 	Cir. 	2001). 	More
specifically, 	“arguable 	means 	capable 	of 	being
convincingly 	argued.” 	Sun 	v. 	Forrester, 	939 	F.2d 	924,
925 (11th Cir. 1991) (internal quotations and citations
omitted). 	Nevertheless, where a “claim is arguable, but
ultimately 	will 	be 	unsuccessful,” 	it 	should 	be 	allowed
to proceed. 	Cofield v. Ala. Pub. Serv. Comm’n, 936 F.2d
512, 515 (11th Cir. 1991).
Ghee 	v. 	Retailers 	Nat. 	Bank, 	271 	F. 	App’x 	858, 	859-60 	(11th 	Cir.
2008) (per curiam).
Considering this legal standard, and for the reasons outlined
above, it is recommended that the Court CERTIFY that any appeal by
Pugh 	of 	the 	dismissal 	of 	the 	present 	§ 	2254 	petition 	would 	be
the 	parties 	to 	submit 	arguments 	on 	whether 	a 	certificate 	should
issue.” 	Rules Governing § 2254 Cases, R. 11(a). 	Accordingly, if
there is an objection to this recommendation by Pugh, he may bring
his 	argument 	to 	the 	attention 	of 	the 	District 	Judge 	in 	the
objections 	permitted 	to 	this 	report 	and 	recommendation. 	Should
this 	Court 	deny 	a 	certificate 	of 	appealability, 	Pugh 	“may 	not
appeal 	the 	denial 	but 	may 	seek 	a 	certificate 	from 	the 	court 	of
appeals under Federal Rule of Appellate Procedure 22.” 	Id.
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without merit and therefore not taken in good faith, thus denying
him entitlement to appeal in forma pauperis.3
V. 	CONCLUSION
For 	the 	reasons 	set 	forth 	above, 	the 	undersigned 	RECOMMENDS
that 	Pugh’s 	§ 	2254 	habeas 	petition 	(Doc. 	1) 	and 	this 	action 	be
DISMISSED 	without 	prejudice 	for 	failure 	to 	prosecute 	and 	failure
to 	obey 	the 	Court’s 	order. 	The 	undersigned 	further 	RECOMMENDS
that 	Pugh 	be 	DENIED 	a 	certificate 	of 	appealability, 	and 	that 	the
Court 	CERTIFY 	that 	any 	appeal 	by 	Pugh 	of 	the 	dismissal 	of 	the
present § 2254 habeas petition would be without merit and therefore
not taken in good faith, thus denying him entitlement to appeal in
forma pauperis.
The Clerk is DIRECTED to send copies of Pugh’s habeas petition
(Doc. 	1) 	and 	this 	report 	and 	recommendation 	to 	Respondent 	Warden
Christopher 	Gordy, 	Bibb 	County 	Correctional 	Facility, 	565 	Bibb
Lane, 	Brent, 	Alabama 	35034, 	and 	to 	the 	Attorney 	General 	of 	the
State of Alabama.
NOTICE OF RIGHT TO FILE OBJECTIONS
A 	copy 	of 	this 	report 	and 	recommendation 	shall 	be 	served 	on
all parties in the manner provided by law. 	Any party who objects
to 	this 	recommendation 	or 	anything 	in 	it 	must, 	within 	fourteen
3 	Pugh 	may 	file 	a 	motion 	to 	proceed 	in 	forma 	pauperis 	on 	appeal
with 	the 	Eleventh 	Circuit 	Court 	of 	Appeals 	in 	accordance 	with
Federal Rule of Appellate Procedure 24(a)(5).
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(14) 	days 	of 	the 	date 	of 	service 	of 	this 	document, 	file 	specific
written objections with the Clerk of this Court. 	See 28 U.S.C. §
636(b)(1); 	Fed. 	R. 	Civ. 	P. 	72(b); 	S.D. 	Ala. 	GenLR 	72(c). 	The
parties 	should 	note 	that 	under 	Eleventh 	Circuit 	Rule 	3-1, 	“[a]
party 	failing 	to 	object 	to 	a 	magistrate 	judge’s 	findings 	or
recommendations 	contained 	in 	a 	report 	and 	recommendation 	in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right 	to 	challenge 	on 	appeal 	the 	district 	court’s 	order 	based 	on
unobjected-to 	factual 	and 	legal 	conclusions 	if 	the 	party 	was
informed of the time period for objecting and the consequences on
appeal 	for 	failing 	to 	object. 	In 	the 	absence 	of 	a 	proper
objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 	11th Cir. R. 3-1.
In 	order 	to 	be 	specific, 	an 	objection 	must 	identify 	the
specific 	finding 	or 	recommendation 	to 	which 	objection 	is 	made,
state 	the 	basis 	for 	the 	objection, 	and 	specify 	the 	place 	in 	the
Magistrate 	Judge’s 	report 	and 	recommendation 	where 	the 	disputed
determination is found. 	An objection that merely incorporates by
reference 	or 	refers 	to 	the 	briefing 	done 	by 	the 	Magistrate 	Judge
is not specific.
DONE this 17th day of April, 2025.
/S/ SONJA F. BIVINS
UNITED STATES MAGISTRATE JUDGE
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