Gerber v. PA State Attorney General et al

Filing 3

MEMORANDUM re 1 Petition for Writ of Habeas Corpus, filed by Warren Gerber. ORDER IN ACCORDANCE WITH THE MEMORANDUM Grants petitioner's in forma pauperis status. The Petition for Writ of Habeas Corpus is DISMISSED for lack of standing. The is no basis for the issuance of a certificate of appealability. Case is terminated. Signed by Honorable John E. Jones, III on 4/19/12. (Attachments: # 1 Order)(pw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WARREN GERBER,
Petitioner

v.

PA STATE ATTORNEY
GENERAL, et al.,
Respondents

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CIVIL NO. 1:12-CV-0716
Hon. John E. Jones III

MEMORANDUM
April 19, 2012
THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:
On April 17, 2012, the above action was initiated on behalf of Warren Gerber
by his brother, Gary Gerber, upon the filing of a Petition for Writ of Habeas Corpus
(“Petition”) under the provisions of 28 U.S.C. § 2254. (Doc. 1.) Warren presently is
a state inmate serving a sentence imposed by the Luzerne County Court of Common
Pleas at the State Correctional Institution- Greene (“SCI Greene”) in Waynesburg,
Pennsylvania. Gary also is a state inmate serving a sentence imposed by the Luzerne
County Court of Common Pleas at the State Correctional Institution Coal Township

(“SCI Coal Township”) in Coal Township, Pennsylvania.1
At the time of filing the Petition, Gary neither paid the required $5.00 filing fee
nor requested in forma pauperis status on behalf of Warren. Although we normally
would issue an Administrative Order requiring a petitioner either to pay the filing fee
or file the appropriate forms to obtain in forma pauperis status, because we find upon
review of the Petition that Gary has not demonstrated that he has standing as
Warren’s “next friend” for purposes of filing the Petition, we shall grant in forma
pauperis status for the sole purpose of filing the Petition, and the Petition will be
dismissed.
An “[a]pplication for writ of habeas corpus shall be in writing signed and
verified by the person for whom relief it is intended or by someone acting in his
behalf.” 28 U.S.C. § 2242. A litigant seeking to prosecute a “next friend” habeas
petition “must establish the requisite [Article III] standing to sue.” See Whitmore v.
Arkansas, 495 U.S. 149, 154 (1990); accord In re Zettlemoyer, 53 F.3d 24, 26-27 (3d
Cir. 1995) (per curiam). “‘[N]ext friend’ standing is by no means granted
automatically to whomever seeks to pursue an action on behalf of another.”
Whitmore, 495 U.S. at 163. These limitations on the “next friend” doctrine are driven

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See Commonwealth of Pennsylvania v. Gary Lee Gerber Jr Aka Muffin, Docket No. CP-40CR-0000525-2007, available at Pennsylvania’s Unified Judicial System Webportal, Common Pleas
Courts Docket Sheets, http://ujsportal.pacourts.us/DocketSheets/CP.aspx
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by the recognition that “‘[i]t was not intended that the writ of habeas corpus should be
availed of, as matter of course, by intruders or uninvited meddlers, styling themselves
next friends.’” Whitmore, 495 U.S. at 164 (quoting United States ex rel. Bryant v.
Houston, 273 F. 915, 916 (CA2 1921); see also Rosenberg v. United States, 346 U.S.
273, 291-92 (1953) (citations omitted) (discountenancing practice of granting “next
friend” standing to one who was a stranger to the detained persons and their case and
whose intervention was unauthorized by the prisoners’ counsel).
A petitioner seeking “next friend” standing must meet two prerequisites. First,
the petitioner must “provide an adequate explanation- such as inaccessibility, mental
incompetence, or other disability- why the real party in interest cannot appear on his
own behalf to prosecute the action.” Whitmore, 495 U.S. at 164 (citations omitted).
Second, the petitioner seeking standing as “next friend” must demonstrate that he or
she is “truly dedicated to the best interests of the person on whose behalf he [or she]
seeks to litigate” and has some “significant relationship” with that person. Id.
(citations omitted). The burden is on the petitioner seeking “next friend” standing to
establish these prerequisites. See id; see also Zettlemoyer, 53 F.3d at 26-27.
In the instant case, the form Petition (Doc. 1 at 1-14), forty-eight (48) page
memorandum of law (Doc. 1 at 15-62), and 350 pages of exhibits (Docs. 1-1 through
1-12), were received in an envelope marked with Gary’s name and return address at
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SCI Coal Township. (See Doc. 1 at 64.) The Petition was signed by Gary with a
notation “(Brother)”. (See Doc. 1 at 14.) Gary also provides the following
explanation: “It was necessary for this petition to be prepared at SCI Coal and
submitted by his brother Gary, as petitioner hadn’t the ability, opportunity, nor
resources to prepare it from where he is housed at Green[e].” (See id.)
This explanation offered by Gary is insufficient to establish “next friend”
standing. Gary’s explanation does not offer any specific reasons why Warren lacks
the “ability, opportunity, [or] resources” to prepare and file the instant Petition, and
therefore, he has failed to meet his burden to show that Warren cannot appear on his
own behalf. Moreover, while Gary’s status as Warren’s brother may indicate a
“significant relationship,” the Court cannot assume solely based upon that
relationship that Gary truly is dedicated to Warren’s best interests, particularly where
it is apparent upon cursory review of the Petition and accompanying exhibits that
their theft and criminal conspiracy convictions are related to the same course of
conduct. Further, Gary’s status as Warren’s brother in and of itself is not enough to
circumvent binding judicial precedent to confer Article III standing upon Gary for
purposes of pursuing the instant Petition. It also does not evade the “well established
principle that while a layman may represent himself with respect to his individual
claims, he is not entitled to act as an attorney for others in federal court.” Lutz v.
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Lavelle, 809 F. Supp. 323, 325 (M.D. Pa. 1991); see 28 U.S.C. § 1654 (“In 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.”); DePonceau v. Pataki, 315 F. Supp. 2d 338, 341 (W.D.N.Y.
2004) (“[P]laintiffs have no statutory nor constitutional right to be represented in
federal court by a non-lawyer”).
In preliminarily reviewing a habeas petition, “[i]f it plainly appears from the
face of the petition and any attached exhibits that the petitioner is not entitled to relief
in the district court, the judge must dismiss the petition and direct the clerk to notify
the petitioner.” Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts. Because Gary has not demonstrated that he is entitled to “Next
Friend” standing, we must dismiss the instant Petition. Also, in light of the fact that
Gary filed the Petition, memorandum of law, and exhibits, we shall direct the Clerk of
Court to return those original documents and also provide a copy of this
Memorandum and its accompanying Order to Gary at SCI Coal Township. An
appropriate Order will enter on today’s date.

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