Miller v. Judge Stephen Ruyle, et al.,

Filing 3

REPORT AND RECOMMENDATION re 1 Complaint: It is RECOMMENDED that the Court DISMISS the Petition WITHOUT PREJUDICE pursuant to Rule 4. Objections to R&R due by 9/14/2015. Signed by Magistrate Judge Elizabeth Preston Deavers on 8/26/2015. (mas)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROSANNA LYNN MILLER,
on behalf of Clair Ray Miller,

:
:

Civil Action 2:15-cv-2755

:

Judge James L. Graham

:

Magistrate Judge Elizabeth P. Deavers

Petitioner,
v.
JUDGE STEPHEN RUYLE,
:
Respondent.

REPORT AND RECOMMENDATION
On August 26, 2015, Rossana Lynn Miller filed a document captioned "Emergency Petition
for the Great Writ of Habeas Corpus." (ECF No. 1.) Ms. Miller purports to bring this lawsuit "on
behalf of Clair Miller," who is her father and who, according to Ms. Miller, is being illegally
detained against his will at an assisted living facility. This matter is before the Court pursuant to its
own motion under Rule 4 of the Rules Governing Section 2254 (habeas corpus) Cases in the United
States District Courts ("Rule 4"). For the following reasons, the Undersigned RECOMMENDS
that the Court DISMISS the Petition WITHOUT PREJUDICE on the grounds that Ms. Miller is
not an attorney at law.
A non-attorney may not pursue a legal action on behalf of another in federal court. See 28
U.S.C. § 1654. Section 1654 of the United States Code provides that “[i]n all courts of the United
States the parties may plead and conduct their own cases personally or by counsel as, by the rules
of such courts, respectively, are permitted to manage and conduct causes therein.” (Id.) The
United States Court of Appeals for the Sixth Circuit has made clear that this provision “does not
permit plaintiffs to appear pro se where interests other than their own are at stake.” Shepher v.

Wellman, 313 F.3d 963, 970 (6th Cir. 2002). Consistently, Federal Rule of Civil Procedure requires
that “[e]very pleading, written motion, and other paper must be signed by at least one attorney of
record in that attorney’s name—or by a party personally if the party is unrepresented.” Fed. R. Civ.
P. 11(a). Thus, dismissal without prejudice is appropriate where a plaintiff is not conducting his or
her own case personally or through counsel. See, e.g., Cochran v. Nelson, No. 93-3521, 1994 WL
28648, at *3 (6th Cir. 1994) (affirming district court’s dismissal of the action without prejudice
where the plaintiff’s father, a non-attorney, attempted to represent his son).
Applying the foregoing here, the Undersigned must recommend that the Court dismiss this
action without prejudice. As a non-attorney, Ms. Miller is not authorized by statute, rule, or case
law to represent the interests of the true Petitioner, Clair Miller.
Accordingly, it is RECOMMENDED that the Court DISMISS the Petition WITHOUT
PREJUDICE pursuant to Rule 4.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
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judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed, appellate
review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 (6th
Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the issues of
contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).
DATE: August 26, 2015

/s/ Elizabeth A. Preston Deavers
ELIZABETH PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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