Brian Anthony DeDen v. Attorney General of California

Filing 4

ORDER SUMMARILY DISMISSING HABEAS PETITION FOR LACK OF STANDING, LACK OF JURISDICTION, FAILURE TO PROSECUTE, AND/OR FAILURE TO COMPLY WITH COURT ORDERS by Judge Virginia A. Phillips. IT IS THEREFORE ORDERED that this action is DISMISSED WITHOUT PREJUDICE for lack of standing, for lack of jurisdiction, for failure to prosecute, and for failure to follow court orders. SEE ORDER FOR DETAILS. Case Terminated. Made JS-6. (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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BRIAN ANTHONY DeDEN,

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Petitioner,
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v.
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ATTORNEY GENERAL OF CALIFORNIA, )
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Respondent.
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No. CV 17-4123-VAP (PLA)
ORDER SUMMARILY DISMISSING
HABEAS PETITION FOR LACK OF
STANDING, LACK OF JURISDICTION,
FAILURE TO PROSECUTE, AND/OR
FAILURE TO COMPLY WITH COURT
ORDERS

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I.

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BACKGROUND

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On June 2, 2017, Rita DeDen (“Ms. DeDen”) filed a Petition for Writ of Habeas Corpus by a

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Person in State Custody pursuant to 28 U.S.C. § 2241 (“Petition” or “Pet.”) (ECF No. 1) on behalf of

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her son, Brian Anthony DeDen (“petitioner”). Ms. DeDen purported to be filing the Petition as a “next

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friend,” pursuant to Central District Local Rule 83-16.3. (Pet. at 2, Attach. to Question 9). According

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to the Petition, petitioner is being “detained in Peru awaiting extradition” to appear in Los Angeles

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County Superior Court case number BA425130. (Pet. at 2). Thus, at the time the Petition was filed,

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he had not yet been convicted or sentenced. (Id.). The Petition raises four claims: (1) many of the

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charges against petitioner are barred by the four-year statute of limitations because the acts alleged

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in this “real estate case . . . were final -- contracts and grant deeds were fully executed by property

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sellers beyond 4-years”; (2) the prosecutor gave improper or no instructions to the grand jury on the

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charges against petitioner; (3) the prosecutor adduced false testimony and suppressed exculpatory

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evidence at the grand jury hearing; and (4) the prosecutor “used old events . . . to obtain false

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testimony from people with flexible memories . . . to gain tactical advantage,” and “waited 1.5 years

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to seek extradition after arresting and settling [with] all other defendants.”1 (Pet. at 3-4).

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On June 7, 2017, after reviewing the Petition, the Magistrate Judge ordered Ms. DeDen to

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show cause on or before June 28, 2017, why the Petition should not be dismissed without prejudice

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(1) for lack of jurisdiction because she lacks standing to bring the action on behalf of petitioner; and

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(2) because she is not an attorney authorized to practice law before this Court. (ECF No. 3 at 5).

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The Magistrate Judge further advised Ms. DeDen that failure to timely file a response to the June 7,

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2017, Order to Show Cause “will result in the Petition being summarily dismissed without

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prejudice for lack of jurisdiction, for failure to prosecute, and/or for failure to follow court

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orders.” (ECF No. 3 at 6).

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As of the date of this Order, Ms. DeDen has not filed a response to the June 7, 2017, Order
to Show Cause, and the time to do so has expired.

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II.

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DISCUSSION

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A.

“NEXT FRIEND” PETITIONS

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A federal court cannot consider the merits of a legal claim unless the person seeking to invoke

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the jurisdiction of the court establishes the requisite standing to sue. Whitmore v. Arkansas, 495 U.S.

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149, 154, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990). A litigant demonstrates standing by showing

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that he has suffered an injury in fact that is fairly traceable to the challenged action and is redressable

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by a favorable judicial decision.

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A review of the state court’s website shows that eleven individuals were arraigned in this

case.
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A third party, or “next friend,” can appear in court on behalf of detained prisoners who are

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unable to seek relief themselves. Id. at 161-62 (noting that 28 U.S.C. § 2242, which allows for an

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application for writ of habeas corpus to be signed and verified “by the person for whose relief it is

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intended or by someone acting in his behalf,” codified the “next friend” doctrine) (emphasis in

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original). A “next friend” does not herself become a party to the habeas corpus action in which she

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participates. She merely pursues the cause on behalf of the detained person, who remains the real

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party in interest. Id. at 163.

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“‘[N]ext friend’ standing is by no means granted automatically to whomever seeks to pursue

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an action on behalf of another.” Id. In order for such standing to be granted, two requisites must be

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satisfied. First, the “next friend” must provide an adequate explanation, such as inaccessibility,

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mental incompetence, or other disability, why the real party in interest cannot appear on his own

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behalf to prosecute the action. See, e.g., United States ex rel. Toth v. Quarles, 350 U.S. 11, 13 n.3,

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76 S. Ct. 1, 100 L. Ed. 8 (1955) (habeas petition brought by sister on behalf of civilian prisoner held

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in military prison in Korea); Massie ex rel. Kroll v. Woodford, 244 F.3d 1192, 1196 (9th Cir. 2001)

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(next friend must present “meaningful evidence” that petitioner is suffering from a mental disease,

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disorder, or defect that substantially affects his capacity to make an intelligent decision); Hamdi v.

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Rumsfeld, 294 F.3d 598 (4th Cir. 2002) (father of alleged enemy combatant detained at a naval

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station brig in Virginia granted “next friend” standing). Second, the “next friend” must have some

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significant relationship with, and be truly dedicated to, the best interests of the petitioner. Massie, 244

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F.3d at 1194 (citing Whitmore, 495 U.S. at 163); cf. Coalition of Clergy, Lawyers, and Professors v.

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Bush, 310 F.3d 1153, 1161-62 (9th Cir. 2002) (coalition lacks standing as “next friend” because it had

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not demonstrated any relations with the detainees on whose behalf the petition was brought). It is

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clear that a “next friend” may not file a habeas corpus petition on behalf of a detainee if the detainee

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himself could file the petition. See Whitmore, 495 U.S. at 163 (citing Wilson v. Lane, 870 F.2d 1250,

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1253 (7th Cir. 1989)). These limitations were placed so that the writ of habeas corpus should not be

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availed of, as a matter of course, by intruders or uninvited meddlers, styling themselves as “next

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friends.” Whitmore, 495 U.S. at 164. Where a habeas petition is brought by an individual who lacks

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standing to proceed as “next friend” of the petitioner, the Court lacks jurisdiction over the action. See

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id. at 166.

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As set forth above, Ms. DeDen filed the current Petition on behalf of her son who is being

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detained in Peru awaiting extradition. Although Ms. DeDen presumably has a significant relationship

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with her son and is dedicated to his best interests, she has not made any showing as to this

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prerequisite.

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“inaccessible” for purposes of asserting her “next friend” status. Her desire to litigate on behalf of her

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son in and of itself is not sufficient. Martinez v. Mitchell, 2009 WL 381969, at *2 (E.D. Cal. Feb. 13,

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2009).

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Nor does Local Rule 83-16.3 -- pursuant to which Ms. DeDen purported to bring the Petition -confer “next friend” standing on Ms. DeDen. That rule provides the following:

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A next friend petition for a writ of habeas corpus in exclusion, deportation and removal
cases must allege that the petitioner has been authorized by the applicant for
admission or respondent in the proceedings to file the petition. If the petition is filed
by a relative who is the . . . mother . . . of the applicant for admission in the
proceedings, that fact shall be alleged and authorization to file the petition need not be
shown.

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Neither has she demonstrated that petitioner’s detention in Peru renders him

Local Rule 83-16.3 (emphasis added). In this case, however, petitioner (as alleged by Ms. DeDen)
seeks to “stay” his extradition from Peru to appear in Los Angeles County Superior Court. (Pet. at
1, Attach. to question 9). It appears, therefore, that Local Rule 83-16.3, providing for “next friend”
status without showing authorization in only three specific types of cases (exclusion, deportation, and
removal), is inapplicable in this extradition case.

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B.

EVEN A “NEXT FRIEND” CANNOT PROCEED WITHOUT COUNSEL
Assuming that the Whitmore requirements could be met if competent evidence had been

provided by Ms. DeDen, even a qualified “next friend” may not proceed with a habeas action on
behalf of another without an attorney. See Stoner v. Santa Clara Cty. Off. of Educ., 502 F.3d 1116,
1127 (9th Cir. 2007) (although False Claims Act authorizes a relator to bring a qui tam action on
behalf of the government, it does not authorize relator to proceed pro se); see also Mitchell v. Yates,
2011 WL 486568, at *2 (C.D. Cal. Jan. 27, 2011) (“individuals not licensed to practice law by the state
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may not use the ‘next friend’ device as an artifice for the unauthorized practice of law”) (quoting

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Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978)). Ms. DeDen did not contend that she is an

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attorney, and a non-attorney has no authority to appear on behalf of anyone but herself. See United

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States v. French, 748 F.3d 922, 933 (9th Cir. 2014) (citing Johns v. Cty. of San Diego, 114 F.3d 874,

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876 (9th Cir. 1997)). In short, Ms. DeDen may not use the “next friend” vehicle to engage in the

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unauthorized practice of law by acting as a pro se “next friend.” See, e.g., Simon v. Hartford Life,

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Inc., 546 F.3d 661, 664 (9th Cir. 2008) (“courts have routinely adhered to the general rule prohibiting

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pro se plaintiffs from pursuing claims on behalf of others in a representative capacity”) (citations and

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footnote omitted); Weber, 570 F.2d at 514; see Whitmore, 495 U.S. at 164. Indeed, Local Rule

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83-2.2.1 expressly prohibits a pro se litigant from delegating his representation to any other person,

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including a spouse or a relative. Petitioner is not entitled, therefore, to have an unlicensed lay

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person, such as Ms. DeDen, represent him in this Court as his attorney.

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Thus, the Petition is subject to dismissal for lack of standing and/or lack of jurisdiction.

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C.

FAILURE TO PROSECUTE AND TO FOLLOW COURT ORDERS

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It is well established that a district court has authority to dismiss a habeas action because of

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failure to prosecute or to comply with court orders. See Fed. R. Civ. P. 41(b); Link v. Wabash R.R.

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Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L. Ed. 2d 734 (1962) (holding that a court’s authority

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to dismiss for lack of prosecution is necessary to prevent undue delays in the disposition of pending

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cases and to avoid congestion in the calendars of the district courts); Ferdik v. Bonzelet, 963 F.2d

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1258, 1260 (9th Cir. 1992) (holding that a district court may dismiss an action for failure to comply

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with any order of the court).

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In determining whether to dismiss this action due to Ms. DeDen’s failure to prosecute or to

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comply with court orders, the Court must consider the following five factors: “(1) the public’s interest

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in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of

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prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits[;] and

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(5) the availability of less drastic sanctions.” Carey v. King, 856 F.2d 1439, 1440 (9th Cir. 1988) (per

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curiam) (citation and internal quotation marks omitted); see also In re Eisen, 31 F.3d 1447, 1451 (9th

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Cir. 1994) (failure to prosecute); Ferdik, 963 F.2d at 1260-61 (failure to comply with court orders).

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The first two factors -- the public’s interest in expeditious resolution of litigation and the Court’s

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need to manage its docket -- weigh in favor of dismissal. Ms. DeDen’s failure to respond to the

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Magistrate Judge’s June 7, 2017, Order to Show Cause hinders the Court’s ability to move this case

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toward disposition and indicates that she does not intend to litigate this action diligently.

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The third factor -- prejudice to respondents -- also weighs in favor of dismissal. A rebuttable

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presumption of prejudice to respondents arises when a petitioner unreasonably delays prosecution

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of an action. Eisen, 31 F.3d at 1452-53. Nothing suggests that such a presumption is unwarranted

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in this case.

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The fourth factor -- public policy in favor of deciding cases on their merits -- weighs against

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dismissal. However, the Magistrate Judge reviewed the Petition and informed Ms. DeDen that the

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Court appears to lack jurisdiction to entertain the Petition because she does not have standing to

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bring the action on petitioner’s behalf, and because she is not an attorney authorized to practice law

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before this Court. (ECF No. 3 at 2-5). Moreover, even assuming Ms. DeDen was able to

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demonstrate that has standing, or that she is an attorney, it is then her responsibility to move this

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case toward a disposition at a reasonable pace and to avoid dilatory and evasive tactics. See Morris

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v. Morgan Stanley Co., 942 F.2d 648, 652 (9th Cir. 1991). By failing to respond to the June 7, 2017,

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Order to Show Cause as ordered by the Magistrate Judge, Ms. DeDen has not discharged this

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responsibility. In these circumstances, the public policy favoring resolution of disputes on the merits

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does not outweigh Ms. DeDen’s failure to comply with court orders.

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The fifth factor -- availability of less drastic sanctions -- weighs in favor of dismissal. The

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Magistrate Judge first attempted to avoid dismissal when he issued his June 7, 2017, Order to Show

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Cause, giving Ms. DeDen an opportunity to show why this action should not be dismissed for lack

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of jurisdiction because Ms. DeDen lacks standing to bring the action on behalf of petitioner and

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because she is not an attorney authorized to practice law before this Court. Nonetheless, as of the

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date of this Order, Ms. DeDen has failed to respond as required by the Magistrate Judge’s June 7,

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2017, Order to Show Cause.
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Taking all of the above factors into account, dismissal for failure to prosecute and to follow

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court orders also is appropriate. Such a dismissal, however, should not be entered unless Ms. Den

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has been notified that dismissal is imminent. See W. Coast Theater Corp. v. City of Portland, 897

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F.2d 1519, 1523 (9th Cir. 1990). In this case, Ms. DeDen was cautioned about the possibility of

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dismissal in the Magistrate Judge’s June 7, 2017, Order.

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Based on the foregoing, the Petition is subject to dismissal for failure to prosecute and/or to
comply with court orders.

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III.

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CONCLUSION

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IT IS THEREFORE ORDERED that this action is dismissed without prejudice for lack

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of standing, for lack of jurisdiction, for failure to prosecute, and for failure to follow court orders.

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DATED: July 19, 2017

___________________________________
HONORABLE VIRGINIA A. PHILLIPS
CHIEF UNITED STATES DISTRICT JUDGE

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