Mabbs v. Biter

Filing 27

ORDER signed by Magistrate Judge Gregory G. Hollows on 12/16/13 ORDERING that Mr. Sullivans request for next friend status, filed November 14, 2013 23 is DENIED; The opposition filed December 2, 2013 26 by purported next friend Michael Sullivan, is disregarded; and Petitioner shall file an opposition which he has personally signed, within 21 days of this order. No further extensions of time will be granted. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES T. MABBS,

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No. 2:13-cv-0550 JAM GGH P

Petitioner,
v.

ORDER

M.D. BITER, Warden,
Respondent.

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Petitioner is proceeding pro se with a petition for writ of habeas corpus. Before the court

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is respondent’s motion to dismiss, filed August 16, 2013, and petitioner’s opposition, filed

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December 2, 2013. The opposition was submitted and signed by petitioner’s “next friend,”

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Michael Sullivan. Although Michael Sullivan has not specifically requested “next friend” status,

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it appears that in the most recent request for extension of time, filed November 14, 2013, Mr.

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Sullivan submitted a “statement of next friend,” which the court construes as an implied request

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for next friend status. See ECF No. 23 at 3.

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While Congress has codified next friend standing in 28 U.S.C. § 2242, the United States

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Supreme Court has made it clear that “‘next friend’ standing is by no means granted

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automatically to whomever seeks to pursue an action on behalf of another.” Whitmore v.

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Arkansas, 495 U.S. 149, 163, 110 S. Ct. 1717, 109 L.Ed.2d 135 (1990). In order to establish next

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friend standing, a putative next friend must show “(1) that the petitioner is unable to litigate his

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own cause due to mental incapacity, lack of access to court, or other similar disability; and (2) the

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next friend has some significant relationship with, and is truly dedicated to the best interests of,

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the petitioner.” Coalition of Clergy, Lawyers and Professors v. Bush, 310 F.3d 1153, 1159–60

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(9th Cir. 2002). The burden is on the putative next friend to clearly establish the propriety of his

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or her status. Whitmore , 495 U.S. at 164.

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Mr. Sullivan states that petitioner is inaccessible because he is housed at a completely

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different prison (from inmate Sullivan), and there is urgency in the nature of a deadline to file his

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opposition to the motion to dismiss. (ECF No. 23 at 3.)

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Neither petitioner nor Mr. Sullivan has submitted any evidence demonstrating that

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petitioner has any mental impairment or lack of access to the court that would require the

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appointment of a next friend. Nor has either of them submitted evidence clearly establishing that

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Mr. Sullivan has a significant relationship with petitioner and is sincerely dedicated to petitioner’s

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best interests. See Bush, 310 F.3d at1159–60. For that reason, Mr. Sullivan’s request is denied

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without prejudice to its renewal upon a proper showing.

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Because the opposition was not signed by petitioner, it will not be considered. Although

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this court, in granting the third request for extension of time, warned petitioner that no further

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extensions would be granted, petitioner will be granted twenty-one days in which to file an

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opposition signed by himself.

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IT IS HEREBY ORDERED that:

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1. Mr. Sullivan’s request for next friend status, filed November 14, 2013 (ECF No. 23), is

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denied;
2. The opposition filed December 2, 2013 (ECF No. 26) by purported next friend Michael
Sullivan, is disregarded; and
3. Petitioner shall file an opposition which he has personally signed, within twenty-one

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(21) days of this order. No further extensions of time will be granted.

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Dated: December 16, 2013

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH:076/ mabb0550.nextfriend

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