Coleman v. Unnamed Respondent

Filing 8

REPORT AND RECOMMENDATIONS dismissing without prejudice 1 Petition for Writ of Habeas Corpus, and DENYING AS MOOT 7 MOTION for Leave to Proceed in forma pauperis filed by Willie Coleman. Objections to R&R due by 3/1/2017. Signed by Magistrate Judge G. R. Smith on 2/15/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
WILLIE COLEMAN,
Petitioner,
v.

CV416-339

UNNAMED RESPONDENT,
Respondent.

REPORT AND RECOMMENDATION
This Court ordered petitioner Willie Coleman to show cause why
this case, which seeks federal habeas relief under 28 U.S.C. § 2254,
should not be dismissed for failure either to pay the required filing fee or
move for leave to proceed in forma pauperis (IFP). Doc. 6. Although
Coleman has since submitted an IFP motion, doc. 7, his case should
nevertheless be dismissed as his petition is brought not by Coleman, but
by a fellow prisoner. His IFP motion, therefore, is denied as moot. Doc.
7.
Coleman’s original petition shows he did not prepare it, and his
IFP motion is, at best, ambiguous.

See docs. 1 & 7. Both documents

indicate that another prisoner, Brandon Marshall, is claiming to act on

Coleman’s behalf in bringing this petition. See Doc. 1 at 1; doc. 7 at 3.
Coleman has not signed “his” petition; Marshall has signed it. Doc 1 at
2. Marshall’s letter, attached to Coleman’s IFP motion, states that
Coleman “is unable to comprehend and execute the necessary duties of
properly preparing a habeas corpus [petition].” Doc. 7 at 3. Although
the IFP motion appears to bear Coleman’s signature, given Marshall’s
letter’s explanation, Coleman’s involvement in its preparation is unclear.
Federal law provides for actions by a “next friend” or guardian ad
litem for an incapacitated party who lacks a duly appointed
representative. See 28 U.S.C. § 2242; see also Fed. R. Civ. P. 17(c)(1). In
such cases, however, the Court must determine the representative’s
suitability. See Whitmore v. Arkansas , 495 U.S. 149, 163 (1990) (“‘[N]ext
friend’ standing is by no means granted automatically to whomever seeks
to pursue an action on behalf of another.”); see also Lonchar v. Zant , 978
F.2d 637, 641 (11th Cir. 1992) (applying Whitmore standards in habeas
context). There must be shown the real party in interest’s incapacity,
the representative’s dedication “to the best interests of the person on
whose behalf he seeks to litigate,” and a “significant relationship” to the
real party. Whitmore , 495 U.S. at 163-64. “The burden is on the ‘next

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friend’ clearly to establish the propriety of his status and thereby justify
the jurisdiction of the court.” Id. at 164.
Since the petition contains no allegations that Marshall has
Coleman’s best interests in mind, or that they have any “significant
relationship,” he has not established his next-friend suitability.

See

Morales v. Sheldon , 2009 WL 1035513 at * 1 (M.D. Fla. April 16, 2009)
(citing Weber v. Garza , 570 F.2d 511 (5th Cir. 1978)) (dismissing § 1983
suit because, inter alia., “[t]here are no allegations that [the putative
next friend] has the best interests of [the real party in interest] in mind,
or that [the next friend] has a ‘significant relationship’ with [the real
party in interest].”)
Further, while the law may recognize a party’s right to proceed in a
representative capacity, that capacity does not entitle the representative
to pursue the case pro se . See Weber , 570 F.2d at 514 (“[I]ndividuals not
licensed to practice law by the state may not use the ‘next friend’ device
as an artifice for the unauthorized practice of law.”). Even parents
permitted to pursue a claim on behalf of their own minor children may
not litigate pro se . FuQua v. Massey , 615 F. App’x 611, 612 (11th Cir.
2015) (quoting Devine v. Indian River Cnty. Sch. Bd. , 121 F.3d 576, 581

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(11th Cir. 1997), overruled in part on other grounds by Winkleman ex rel.

Winkelman v. Parma City Sch. Dist. , 550 U.S. 516, 535 (2007)); Oliver v.
Southcoast Medical Grp., LLC , 2011 WL 2600618 at * 1 (S.D. Ga. June
13, 2011). Non-attorney parents are not allowed to proceed pro se on
their children’s behalf “because it helps to ensure that children rightfully
entitled to legal relief are not deprived of their day in court by unskilled,
if caring, parents.”

Oliver , 2011 WL 2600618 at * 2 (quotes and cite

omitted). That rationale applies with equal, if not greater force, to
prisoners. Since Marshall has not established his status as Coleman’s
“next friend,” he may not pursue this action pro se .
Accordingly, Coleman’s § 2254 petition should be DISMISSED

WITHOUT PREJUDICE and his IFP motion is DENIED as moot.
Doc. 7.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court’s Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
“Objections to Magistrate Judge’s Report and Recommendations.” Any

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request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge’s findings and
recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp. ,
648 F. App’x 787, 790 (11th Cir. 2016); Mitchell v. U.S. , 612 F. App’x
542, 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED , this 15th day of
February, 2017.

UNITED STATES MAGISTRATE ILJDGE
SOUTHERN DISTRICT OF GEORGIA

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