Randolph v. The State of Nevada, Ex Rel, Nevada Department of Corrections et al

Filing 103

ORDER granting Plaintiff's 100 Response/Motion; denying 80 and 82 motions filed by Travers Greene; denying as moot document 81 filed by Travers Greene; denying as moot NDOC Defendants' 92 Motion to Strike. Signed by Magistrate Judge William G. Cobb on 7/24/2014. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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CHARLES RANDOLPH,

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Plaintiff,

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THE STATE OF NEVADA, ex rel, NEVADA
DEPARTMENT OF CORRECTIONS, et al.,
Defendants.
Before the court is Plaintiff's Response to Interested Party’s Motions (Doc. # 100.)1 In
essence, Plaintiff seeks an order denying as moot three documents (Docs. ## 80, 81 and 82) filed
by a fellow inmate, allegedly on Plaintiff’s behalf. For the following reasons, Plaintiff’s request
is GRANTED.
I. BACKGROUND

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ORDER

v.

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3:13-cv-00148-RJC-WGC

On June 13, 2014, Traverse Greene (“Greene”), an inmate incarcerated with Plaintiff at
Ely State Prison (ESP), purportedly acting as a “next of friend,” filed three documents with the
court: Motion for Leave to File Motion for Stay of Proceedings (Doc. # 80); Notice of Change of
Plaintiff’s Address (Doc. # 81); and Motion to Receive all Electronically Filed Documents
(Doc. # 82). The court subsequently issued a Minute Order on June 16, directing all Defendants
to respond to the documents filed by Greene. (Doc. # 84.) On June 26, former Defendant
CenturyLink Public Communications, Inc., fka Embarq Payphone Services, Inc. (“CenturyLink”)
filed a response in opposition to Greene’s’ motions (Docs. ## 88, 89 and 90), and on June 27,
Defendants Baker, Cox, Del Porto and E.K. McDaniel (collectively “NDOC Defendants”) filed a
motion to strike all “Next of Friend” documents filed by Greene (Docs. ## 80, 81 and 82).
(See Docs. ## 92 and 102.) Plaintiff filed this response on July 10, 2014. (See Doc. # 100.)

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Refers to court's docket number.

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In the three documents he filed as a “Next of Friend” (Docs. ## 80, 81 and 82), Greene

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asserts that Plaintiff was transferred from Ely State Prison (ESP) to several different hospitals as

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the result of appendicitis and deteriorating health, and claims that Plaintiff remains at Northern

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Nevada Correctional Center (NNCC). Greene states that he is a fellow inmate of Plaintiff’s at

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ESP, and that he has been acting as Plaintiff’s “legal assistant” in this case. Greene contends he

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is in possession of all Plaintiff’s legal documents while Plaintiff remains hospitalized, that he is

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familiar with Plaintiff’s case, and states that he filed these documents on Plaintiff’s behalf as a

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“Next of Friend.” Greene seeks to have all documents pertaining to this matter sent to him during

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Plaintiff’s absence, and requests a stay of Plaintiff’s case until he recovers and can return ESP.

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In their responses (Docs. # 88, 89 and 90), CenturyLink argues that Greene has no

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authority to file any documents in this case on Plaintiff’s behalf. Specifically, they state that an

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individual may appear only pro se or through legal counsel, and contend that there is no evidence

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that Greene is an attorney. CenturyLink also contends that the right of Plaintiff to seek legal

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assistance from fellow inmates does not extend to representation during litigation by non-party

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laypersons. (Doc. # 88 at 2.) In addition, CenturyLink argues that Greene does not meet the

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requirements to qualify for next-friend standing. (Id. at 3.)

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In their motion to strike and reply in support (Docs. ## 92 and 102), NDOC Defendants

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reiterate the arguments made by CentryLink in their response, and refer the court to the cases

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cited therein. In addition, NDOC Defendants cite Administrative Regulation 722 as support for

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their motion. (Doc. # 92, Exh. A.) Defendants’ contended that A.R. 722 permits Plaintiff to

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receive legal assistance from other inmates, but specifically states that inmates are not permitted

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to appear in state or federal court on behalf of other inmate. (Id., at 5-6.)

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In his response (Doc. # 100), Plaintiff states that he was aware of and supported the

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three documents filed on this behalf (Docs. ## 80, 81 and 82). (Id. at 1.) Plaintiff contends that

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Greene filed the motions with Plaintiff’s best interests in mind, and that Greene was acting as a

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“next of friend” due to Plaintiff inability to protect his own interest. (Id. at 2.) Plaintiff states that

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he would have sought the “same relief” himself, but was unable to do so because of his medical

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condition and resulting transfer to NNCC. Plaintiff further indicates that he has since returned to

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ESP, and consequently that there is no need to grant the relief requested by Greene. Plaintiff asks

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that the court “view as moot” the three documents filed on his behalf. (Id.)
III. DISCUSSION

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Preliminarily, the court notes that the granting of Plaintiff’s request in Doc. # 100 largely

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resolves CenturyLink’s opposition to Greene’s appearance in this matter, and renders moot the

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NDOC Defendants’ motion to strike. Nonetheless, the court believes it necessary to resolve the

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apparent discrepancy between Plaintiff and Defendants’ regarding Greene’s ability to participate

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in this matter under the doctrine of next-friend standing.

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The next-friend standing doctrine permits persons unable to prosecute their own action to

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have third persons –“next friends” – stand in for them. Today, this doctrine is most often used in

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the context of habeas corpus petitions, as next-friend standing is expressly authorized by the

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federal habeas corpus statute.2 The statute itself does not, however, provide any requirements for

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asserting next-friend standing, and the modern standard for its assertion was established by the

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Supreme Court in Whitmore v. Arkansas, 495 U.S. 149 (1990). In Whitmore, the third party was

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not bringing a habeas corpus petition on behalf of the real party in interest , but rather was

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attempting to intervene in a state court proceeding. Nonetheless, the Court recognized a federal

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common-law doctrine of next friend standing, stating that it is “no broader than what is permitted

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by the habeas corpus statute.” Id. at 163-64. Thus, a party wishing to assert next-friend standing

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under either the federal habeas corpus statute or at common law must satisfy the same

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requirements set forth in Whitmore.
Under the test established in Whitmore, Greene bears the burden to justify his status as a

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“next friend” by establishing that (1) he is “truly dedicated” to Plaintiff’s best interest; (2) that he

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has a “significant relationship” with Plaintiff;3 and (3) that there is an adequate explanation –

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such as inaccessibility, mental infirmity, or other disability – why Plaintiff cannot appear on his

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own behalf. Id. at 163-64. For the following reasons, Greene has not met these requirements,

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See 28 U.S.C. § 2242 (2000)(“Applications for a writ of habeas corpus shall be in writing signed and verified by
the person for whose relief it is intended or by someone acting on his behalf.”)

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See Coalition of Clergy v. Bush, 310 F.3d 1153 at 1162 (9th Cir. 2002)(holding that the Whitmore test should be
understood to require a significant relationship between the would-be next friend and the real party in interest).

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and his assertion of next-friend standing must fail.
As NDOC Defendants correctly point out, Greene offers no authority to suggest that

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serving as Plaintiff’s legal assistant while the two are incarcerated together necessarily

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establishes that he is “truly dedicated” to Plaintiff’s best interest, or that the two share a

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“significant relationship.” Indeed, the Ninth Circuit has recognized that the assertion by a would-

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be “next friend” that his status as a fellow inmate qualifies him for next-friend standing, absent

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unique circumstances, is insufficient to satisfy either of the first two Whitmore requirements.

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See Wilson v. Dixon, 256 F.2d 536, 537-38 (9th Cir. 1958).

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Further, Greene has not provided an adequate explanation for why Plaintiff could not file

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these motions on his own behalf. Circumstances under which the requisite unavailability has

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been found to exist include a prisoner’s illiteracy, disabling physical or mental impairment,

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peculiar isolating confinement, or geographic remoteness from court or counsel. See Whitmore,

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495 U.S at 110. Plaintiff’s temporary inability to access his legal files do to his hospitalization

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does not constitute circumstances necessitating Greene’s filing documents in this matter on

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Plaintiff’s behalf. This conclusion receives additional support from the fact that all other parties

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in this case have expressed their non-opposition to granting plaintiff an extension, if necessary,

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to allow him time recover from his illness. (See Docs. ## 88 at 2; Doc. 92 at 3.)

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Even if Greene were qualified to assert next-friend standing, the well-settled rule against

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lay representation would, nonetheless, impede his ability to appear on Plaintiff’s behalf. Greene

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does not contend that he is an attorney, and a non-attorney has no authority to appear on behalf

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of anyone but himself. See United States v. French, 748 F.3d 922, 933 (9th Cir. 2014); See also

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Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir. 1997). Notably, while Plaintiff is not

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seeking post-conviction relief in this case, it is significant that the federal habeas corpus statute

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does not permit even a qualified “next friend” to proceed without an attorney. Finally, as

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asserted by NDOC Defendants in their motion to strike, A.R. 722 does not permit Greene, as a

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fellow inmate, to appear in state or federal court on Plaintiff’s behalf.

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For these reasons, the court notifies Plaintiff that Greene is not qualified to assert “next
friend” standing in this case. Accordingly, Greene is not permitted to appear in this case, nor

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may he make any filings on Plaintiff’s behalf.4
Finally, the court will address NDOC Defendants filing a motion to strike all “next of

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friend” motions filed by Greene. Defendants’ response should actually have been submitted as an

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opposition, not a counter motion. This is particularly so where, as here, the court issued an order

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specifically directing Defendants to response to Greene’s motions. (See Doc. # 84.) Filing

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motions to strike, which are generally limited to addressing other pleadings (and under Fed. R.

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Civ. P. 12(f), a motion is not a pleading), clutters the court’s calendar. The substantive approach

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should simply have been to oppose Plaintiff’s request by filing a response, as the court directed.
In accordance with the findings set out in this order, the court rules as follows:

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1. Plaintiff's motion (Doc. # 100) is GRANTED;

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2. Documents # 80 and # 82 filed by Traverse Greene are DENIED for the reasons
stated in this order;

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3. As a consequence of Plaintiff’s filing a Notice of Change of Address himself on

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June 18, 2014 (Doc. # 86), Document # 81 filed by Traverse Greene is

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DENIED AS MOOT; and
4. NDOC Defendants’ Motion to Strike (Doc. # 92) is DENIED AS MOOT.

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IT IS SO ORDERED.

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DATED: July 24, 2014.
__________________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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This conclusion is not to suggest that Plaintiff cannot receive inmate assistance from Greene in reviewing and
preparing legal documents in relation to this case. This court’s conclusion is simply that Greene does not qualify for
next-friend standing, and may not file pleadings or any other documents in this case, nor may he make any
appearances on Plaintiff’s behalf.

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