Heflin v. Harrison County Adult Detention Center et al

Filing 11

MEMORANDUM OPINION AND ORDER: Ordered that this case is dismissed without prejudice. Signed by District Judge Louis Guirola, Jr. on 9/24/18. (RLW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
MICHAEL W. HEFLIN, # L4735
v.

PLAINTIFF
CAUSE NO. 1:18CV212-LG-RHW

HARRISON COUNTY ADULT
DETENTION CENTER, HARRISON
COUNTY SHERIFF’S DEPARTMENT,
GULF COAST COMMUNITY
COLLEGE, and HARRISON COUNTY

DEFENDANTS

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This case is before the Court sua sponte. Pro se Plaintiff Michael W. Heflin
is a pretrial detainee at the Hancock County Jail, and he brings this action
challenging the conditions of his son’s confinement. The Court has considered and
liberally construed the pleadings. As set forth below, this case is dismissed.
FACTS AND PROCEDURAL HISTORY
While Plaintiff Michael W. Heflin is currently detained at the Hancock
County Jail, this Complaint concerns his son, incarcerated at the Harrison County
Adult Detention Center. Defendants include Harrison County, its jail and Sheriff’s
Department, and Gulf Coast Community College. Gulf Coast allegedly administers
the Detention Center’s GED program.
Plaintiff alleges that his son is eighteen years old and that Harrison County
denied him “the right to further his education through the G.E.D. program” at the
Harrison County Detention Center. (1st Resp. [7] at 1). He was allegedly denied

participation in the program due to the fact that he has a “gun charge.” Id.
Plaintiff maintains this is not a proper reason to deny his son eligibility for the GED
program, because in other jails, “anyone can pursue their GED! . . . He should be
able like anyone to attend.” (Compl. at 5). However, in the Harrison County jail,
Plaintiff asserts that no violent felons, felons with a gun charge, or anyone with an
aggravated assault charge is allowed in the GED program. Plaintiff contends that
without the GED, his son is ineligible to transfer to a juvenile detention center.
Plaintiff brings this action under 42 U.S.C. § 1983 on behalf of his son.
Plaintiff seeks an injunction allowing his son to participate in the jail’s GED
program.
DISCUSSION
The Prison Litigation Reform Act of 1996, applies to prisoners proceeding in
forma pauperis in this Court. The statute provides in pertinent part that, “the
court shall dismiss the case at any time if the court determines that . . . the action . .
. (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be
granted; or (iii) seeks monetary relief against a defendant who is immune from such
relief.” 28 U.S.C. § 1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Denton v.
Hernandez, 504 U.S. 25, 32 (1992). “[I]n an action proceeding under [28 U.S.C. §
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1915, a federal court] may consider, sua sponte, affirmative defenses that are
apparent from the record even where they have not been addressed or raised.” Ali
v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). “Significantly, the court is authorized
to test the proceeding for frivolousness or maliciousness even before service of
process or before the filing of the answer.” Id. The Court has permitted Plaintiff
to proceed in forma pauperis in this action. His Complaint is subject to sua sponte
dismissal under § 1915.
Plaintiff attempts to represent his son pro se. Because an unrepresented
minor is involved, the Court must first consider its role under Rule 17, before the
Court may rule on the minor’s claims. Fed. R. Civ. P. 17(c)(2); Chrissy F. ex rel.
Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25, 27 (5th Cir. 1989).
One pro se party cannot represent another. Gonzales v. Wyatt, 157 F.3d
1016, 1020-22 (5th Cir. 1998). Therefore, a minor child generally cannot bring suit
through a pro se next friend or guardian. Aduddle v. Body, 277 F. App’x 459, 462
(5th Cir. May 7, 2008) (pro se guardian could not represent granddaughter). See
also, Elustra ex rel. Elustra v. Mineo, 595 F.3d 699, 705 (7th Cir. 2010); Myers v.
Loudon Cty. Pub. Schs., 418 F.3d 395, 401 (4th Cir. 2005); Shepherd v. Wellman,
313 F.3d 963, 970-71 (6th Cir. 2002); Osei-Afriyie ex rel. Afriyie v. Med. Coll. of Pa.,
937 F.2d 876, 878 (3d Cir. 1991); Cheung v. Youth Orchestra Found., Inc., 906 F.2d
59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986). But
see, Harris ex rel. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000) (pro se parent
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can represent her child in a social security appeal because administrative rules
allow it and the parent’s interests are coextensive with the child’s). Plaintiff is
incarcerated, not living with his son, and is not represented by an attorney.
Indeed, Plaintiff alleges that only “as far as [he] know[s],” his son is still in jail and
not in the GED program. (2d Resp. [10] at 1). Therefore, Plaintiff may not
represent his son in this civil action.
Now the Court “must appoint a guardian ad litemBor issue another
appropriate orderBto protect” Plaintiff’s son. Fed. R. Civ. P. 17(c)(2). The Fifth
Circuit Court of Appeals has set forth the procedure for a court’s duty under Rule
17:
We spell out the rule to mean: (1) as a matter of proper procedure, the
court should usually appoint a guardian ad litem; (2) but the Court
may, after weighing all the circumstances, issue such order as will
protect the minor . . . in lieu of appointment of a guardian ad litem; (3)
and may even decide that such appointment is unnecessary, though
only after the Court has considered the matter and made a judicial
determination that the infant . . . is protected without a guardian.
Adelman ex rel. Adelman v. Graves, 747 F.2d 986, 989 (5th Cir. 1984). The Court
“should consider that access to the courts by aggrieved persons should not be
unduly limited, particularly . . . where an incompetent person raises allegations of
violations of his rights attributable to his custodians, and further alleges a failure to
act on the part of his legal guardian.” Id.
Plaintiff seeks an injunction ordering his son’s admittance to the jail’s GED
program. He was at least 18 years old as of July 10, 2018; therefore, he is not
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currently a compulsory school age child. Miss. Code Ann. § 37-13-91(2)(f). As a
minor, the statute of limitations would not begin to accrue on his claims until after
he reaches 21, the age of majority in Mississippi. Miss. Code Ann. §§ 11-46-11(4),
15-1-59; Hardin v. Straub, 490 U.S. 536, 543 (1989) (applying state tolling statutes
to § 1983); Pollard v. Sherwin-Williams Co., 955 So. 2d 764, 770 (&18) (Miss. 2007).
After considering the matter, the Court finds, under the circumstances, Plaintiff’s
son’s rights would be adequately protected by a dismissal without prejudice. His
right of access to the courts is not cut off by such an order.
IT IS THEREFORE ORDERED AND ADJUDGED that, for the foregoing
reasons, this case should be, and is hereby, DISMISSED WITHOUT
PREJUDICE. A separate final judgment shall issue pursuant to Federal Rule of
Civil Procedure 58.
SO ORDERED AND ADJUDGED this the 24th day of September, 2018.

s/

Louis Guirola, Jr.

LOUIS GUIROLA, JR.
UNITED STATES DISTRICT JUDGE

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