United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
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.
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.
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
friend' clearly to establish the propriety of his status
and thereby justify the jurisdiction of the court."
Id. at 164.
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
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 (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.
Coleman's § 2254 petition should be DISMISSED
WITHOUT PREJUDICE and his IFP motion is DENIED as moot. Doc.
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 request for additional time to
file objections should be filed with the Clerk for
consideration by the assigned district judge.
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 ...