Hudson v. Nickrenz et al

Filing 13

ORDER adopting Report and Recommendation 6 . Hudson's Motion to Proceed as a Veteran under Rule 40 [ECF No. 8] is DENIED. Hudson's Motion to Transfer to a Prison Camp Near Legal Residence [ECF No. 10] is DENIED AS MOOT. This action is DISMISSED WITHOUT PREJUDICE. (Written Opinion) Signed by Judge Joan N. Ericksen on July 1, 2014. (CBC) cc: Jamal Derrick Hudson. Modified on 7/1/2014 (las).

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Jamal Derrick Hudson,
Petitioner,
v.

No. 14-cv-696 (JNE/LIB)
ORDER

C. Nickrenz, Warden Duluth FPC; Bureau of
Prisons; N. Mottaghi, Case Manager, Terminal
Island FCI; and K. Winger, Unit Manager,
Duluth FPC, Bureau of Prisons,
Respondents.

Petitioner Jamal Derrick Hudson is a federal inmate who initiated this action pro se by
filing a self-styled “Petition for Relief under 28 U.S.C. ¶ 2241.” ECF No. 1. In an order that
issued on March 18, 2014, the United States Magistrate Judge determined that the claims Hudson
presents in his petition “cannot properly be addressed or decided in a habeas corpus case.” ECF
No. 2 at 1. Therefore, the Magistrate Judge ordered that Hudson’s habeas petition be stricken
without prejudice under Rule 4 of the Rules Governing Section 2254 Cases and granted him
leave to file a new civil pleading in accordance with Federal Rules of Civil Procedure 8-11 and
Local Rule 9.3. Id. at 5-6. The Magistrate Judge also directed that any new pleading must be
filed by April 11, 2014 and be accompanied by either a $395 filing fee (reflecting the $5 filing
fee Hudson already paid for his habeas petition) or an application to proceed in forma pauperis
with an initial partial filing fee. Id. at 6. Finally, the Magistrate Judge alerted Hudson that a
failure to comply with the order would result in a recommendation that this action be dismissed
without prejudice. Id.

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Hudson objected. On April 23, 2014, the Court affirmed the Magistrate Judge’s order,
but for the deadline for filing a new civil pleading, which was extended to May 16, 2014 to
ensure that Hudson had an opportunity to comply. ECF No. 5.
Hudson took no action by May 16. Therefore, on May 21, 2014 the Magistrate Judge
issued a Report and Recommendation recommending that this action be dismissed without
prejudice. ECF No. 6.
Since then, Hudson has made several filings. On June 2, 2014, he submitted a “Motion in
Response to Magistrate Judge Report and Recommendation, Motion to Proceed as a Veteran,”
ECF Nos. 7-8, along with an affidavit attesting to his military service, ECF No. 9. In these
documents, Hudson states that he received the Magistrate Judge’s Report and Recommendation
in the mail, but he had not received the Court’s April 23 order. (In response, a copy of the April
23 order was mailed to Hudson on June 2.) Hudson also requests that he be allowed “to proceed
as a Veteran, under Rule 40 Supreme Court Rule, exempting Veterans from the prepayment of
fees or court costs.”
A week later, on June 9, 2014, Hudson filed a self-styled “Motion to Transfer to a Prison
Camp Near Legal Residence Due to a False Transfer Application Submitted by BOP Case
Manager, and Motion to Proceed as a Veteran Under Rule 40,” ECF No. 10, along with another
copy of his affidavit regarding his status as a veteran, ECF No. 11. In these documents, Hudson
states that he is filing “a non habeas civil suit” pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
It is thus evident that Hudson has had notice and ample opportunity to comply with the
Magistrate Judge’s March 18 order and the Court’s April 23 order affirming it. Hudson has
sought to take advantage of the leave that those orders granted him to file a new, non-habeas

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civil pleading – though he has not filed it on the standard form for prisoner civil rights
complaints as Local Rule 9.3 requires and as the Magistrate Judge specifically ordered him.
More significantly, Hudson has not complied with the orders’ clear directive that any new
civil pleading must be filed in conjunction with either a $395 filing fee or a properly completed
application to proceed in forma pauperis. To date, Hudson has paid no filing fee beyond the $5
he initially paid for his self-styled habeas corpus petition, and he has not submitted an
application to proceed in forma pauperis. Instead, Hudson has moved to proceed under Supreme
Court Rule 40, which provides that
[a] veteran suing under any provision of law exempting veterans from the
payment of fees or court costs, may proceed without prepayment of fees or costs
or furnishing security therefore and may file a motion for leave to proceed on
papers prepared as required by Rule 33.2. The motion shall ask leave to proceed
as a veteran and be accompanied by an affidavit or declaration setting out the
moving party’s veteran status. A copy of the motion shall precede and be
attached to each copy of the petition for a writ of certiorari or other substantive
document filed by the veteran.
This provision does not apply to a Bivens action in the district courts.
This action will therefore be dismissed without prejudice. Because Hudson has neither
paid the filing fee nor submitted an application to proceed in forma pauperis despite being given
ample opportunity to do so, this matter can go no further. See Nerness v. Johnson, 401 F.3d 874,
875-76 (8th Cir. 2005) (“suggest[ing] that the Plaintiff be permitted the option of either paying
the district court filing fee in full or []submitting a proper application to proceed in forma
pauperis” before dismissing action without prejudice).

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Based on the files, records, and proceedings herein, and for the reasons discussed above,
IT IS ORDERED THAT:
1. Hudson’s Motion to Proceed as a Veteran under Rule 40 [ECF No. 8] is DENIED.
2. Hudson’s Motion to Transfer to a Prison Camp Near Legal Residence [ECF No. 10] is
DENIED AS MOOT.
3. This action is DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: July 1, 2014

s/Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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