Rodgers v. Sinker et al
Filing
35
ORDER by Magistrate Judge Nina Y. Wang on 7/15/15 re: Plaintiff's Motion for Leave and Verified Petition - Declaration of James Faircloth - Next Friend of Nikkie Rodgers for Court's Permission to Issue Order to Correspond with Nikkie Rodgers to Assist in Litigation 32 . The Motion is DENIED WITHOUT PREJUDICE. (bsimm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 15-cv-00174-CMA-NYW
RICHARD “NIKKI” RODGERS,
Plaintiff,
v.
JODI SINKER, Nurse 3 of CTCF, Clinical Services, and
ZUPAN, Warden CTCF, FNU,
Defendants.
ORDER
Magistrate Judge Nina Y. Wang
This civil action is before the court on Plaintiff’s “Motion for Leave and Verified
Petition – Declaration of James Faircloth – Next Friend of Nikkie Rodgers For Court’s
Permission to Issue Order to Correspond with ‘Nikkie’ Rodgers to Assist In Litigation”
(the “Motion”). [#32, filed July 10, 2015]. This matter was referred to this Magistrate
Judge pursuant to the Order Referring Case dated March 6, 2015 [#11] and the
memorandum dated July 13, 2015 [#33].
Plaintiff asks that the court allow Mr. James-Arthur Faircloth to act as a “Sui Juris
– Attorney-in-Fact-Next Friend” to her for the purposes of this litigation.1 Mr. Faircloth is
in the custody of the Colorado Department of Corrections (“CDOC”) and incarcerated at
a different facility from where Plaintiff is housed; he is not authorized to practice law.
1
The body of the Motion purports to be an affidavit signed by Mr. Faircloth, but appears
to be written in Plaintiff’s handwriting.
[#32 at 1]. Plaintiff seeks leave to correspond regarding legal advice with Mr. Faircloth
via U.S. Mail (and thus waive the CDOC directive that inmates not correspond with each
other through the mail), and permission for Mr. Faircloth to provide her with examples of
legal documents and assist CDOC legal assistants in writing briefs for Plaintiff.
In Whitmore v. Arkansas, 495 U.S. 149 (1990), the Supreme Court made clear
that standing to proceed as next friend on behalf of a prisoner “is by no means granted
automatically to whomever seeks to pursue an action on behalf of another.” 495 U.S. at
163. The Whitmore court specifically considered “next friends” in the context of habeas
corpus relief pursuant to 28 U.S.C. § 2254, but nonetheless opined that next friend
standing should not exceed the scope as provided in the habeas corpus statute. Id. at
164-65 (“Without deciding whether a ‘next friend’ may ever invoke the jurisdiction of a
federal court absent congressional authorization, we think the scope of any federal
doctrine of ‘next friend’ standing is no broader than what is permitted by the habeas
corpus statute, which codified the historical practice.”). The Court then concluded that
“one necessary condition for ‘next friend’ standing in federal court is a showing by the
proposed ‘next friend’ that the real party in interest is unable to litigate his own cause
due to mental incapacity, lack of access to court, or other similar disability.” Id. at 165.
See also Hayes v. Murphy, 663 F.2d 1004 (10th Cir. 1981). Furthermore, the party
seeking to represent a prisoner as next friend must establish a significant relationship
with and a true dedication to the best interests of the real party in interest. See, e.g.,
Whitmore, 495 U.S. at 163.
2
The Motion does not demonstrate that Plaintiff is unable to litigate this action.
The Complaint is detailed and cites legal authority. [#6]. The docket does not suggest
any lack of access to the court, nor does Plaintiff argue that she lacks such access.
Indeed, the only basis for Mr. Faircloth’s assistance is in the interest of justice and to
help Plaintiff assert her rights “concerning equality and public constitutional interests…”
[#32 at 2]. Nor does Mr. Faircloth describe the nature of relationship with or interest in
Plaintiff. Cf. Brown v. Davis, No. 08–3313–RDR, 2009 WL 536559 at *1 (D. Kan. March
3, 2009) (finding mother seeking to act as next friend to son in filing a writ of habeas
corpus failed to satisfy burden of “clearly establishing the propriety of [her] status.”).
Finally, because Mr. Faircloth does not qualify as “next friend,” Plaintiff is directed
to remind Mr. Faircloth that, as a lay person, he may not participate in the unauthorized
practice of law by filing briefs on behalf of another in violation of state and federal
provisions governing the practice of law. Williams v. Boone, 166 F.3d 1223, 5 (10th Cir.
1999).
IT IS ORDERED that the Motion [#32] is DENIED WITHOUT PREJUDICE.
DATED: July 15, 2015
BY THE COURT:
s/Nina Y. Wang__________
United States Magistrate Judge
3
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