Opinion
3:03-CV-2589-D.
April 16, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a civil action brought by incarcerated and non-incarcerated individuals. The magistrate judge has not issued process in this case.
Findings and Conclusions: Three preliminary matters are before the court for consideration: (1) Plaintiff Larry Lee Martin's status as next friend; (2) want of prosecution by certain plaintiffs for failure to sign the complaint and/or failure to submit an in forma pauperis motion; and (3) want of prosecution by Jimmie Dewayne Martin.
1. Next Friend Status: Since the inception of this lawsuit Plaintiff Larry Lee Martin has sought to represent his minor children without the aid of counsel in his next friend capacity. (See Original and First Amended Complaints; and Answer to Supplemental Questionnaire filed on January 8, 2004). By letter motion filed on March 22, 2004, Larry Lee Martin also sought to represent in his next friend capacity co-plaintiff John Paul Martin, who is presently incarcerated in the Texas Department of Criminal Justice (TDCJ), and the minor children of co-plaintiff Mcyril Javon Henderson. (See March 22, 2004 Letter Motion of Larry Lee Martin at 1).
It has long been recognized that a litigant in a federal court has the right to proceed as his or her own counsel. 28 U.S.C. § 1654 (2003) (stating "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel. . . ."). Infants or minors are precluded from determining their own legal actions under Rule 17, Federal Rules of Civil Procedure. Instead, under Rule 17(c), a representative or guardian "may sue or defend on behalf of the infant."
The Fifth Circuit has not addressed directly the issue of whether a parent can represent his children in a pro se capacity in federal court. It has held, however, that individuals who do not have a law license may not represent other parties in federal court even on a next friend basis. Weber v. Garza, 570 F.2d 511, 514 (5th Cir. 1978) (finding that "individuals not licensed to practice law by the state may not use the `next friend' device as an artifice for the unauthorized practice of law"); see also Guajardo v. Luna, 432 F.2d 1324, 1324 (5th Cir. 1970) (holding that "the requirement that only licensed lawyers may represent others in court is a reasonable rule that does not offend any constitutional guarantee"). Several other circuits have held that the right to proceed pro se in federal court does not give non-lawyer parents the right to represent their children in proceedings before a federal court. See Collinsgru v. Palmyra Bd. of Education, 161 F.3d 225, 227 (3rd Cir. 1998); Johns v. County of San Diego, 114 F.3d 874, 876-77 (9th Cir. 1997); Cheung v. Youth Orchestra Found., 906 F.2d 59, 61 (2d Cir. 1990); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir. 1986). See also Jimison by Parker v. Mann, 957 S.W.2d 860, 862-62 (Tex.App.-Amarillo, 1997) (Tex. R. Civ. Proc. 44, which states that a next friend has the same rights concerning a suit as would a guardian, does not vitiate Tex. Gov't Code Ann § 81.102(a) which permits the practice of law by only the members of the bar).
Under the clear precedent set out above, Larry Lee Martin cannot represent his minor children, Larry Lee Smith, Derontaye Smith, and Travon Ford, without the aid of an attorney. While Larry Lee Smith may act as next friend for his children and include them in this lawsuit, he must retain legal counsel to protect their interests. Accordingly, Larry Lee Smith, Derontaye Smith, and Travon Ford Martin should be dismissed from this action without prejudice.
In the event minors with colorable claims are dismissed from this action, the statute of limitations will not begin to run as to them until they reach their eighteenth birthday. Tex. Civ. Prac. Rem. Code § 16.001(a) and (b).
Nor can Larry Lee Martin represent the minor children of Mcyril Javon Henderson, Semetria B. Henderson and Jadarren L. Henderson, in his next friend capacity. Texas Rule of Civil Procedure 44 provides that "[m]inors, lunatics, idiots, or persons non compos mentis who have no legal guardian may sue and be represented by `next friend' under the following rules . . ." The letter/motion, which Larry Lee Martin filed on March 22, 2004, is insufficient to establish that Henderson's minor children "have no legal guardian." Moreover, as noted previously, even if Larry Lee Martin were the minors true "legal guardian," he could not represent them without the aid of an attorney. Therefore, his motion to represent Semetria B. Henderson and Jadarren L. Henderson in his next friend capacity should be denied.
Plaintiff did not name Semetria B. Henderson and Jadarren L. Henderson in his original or first amended complaint.
The motion to represent co-plaintiff John Paul Martin should likewise be denied. John Paul Martin's status as a Texas state inmate does not alter his capacity to prosecute this action on his own behalf. There is no constitutional guarantee that non-attorneys may represent other people in litigation. The only narrow exception is with respect to a jail-house lawyer who may help a fellow prisoner file initial papers in habeas corpus actions or civil rights complaint when the state has failed to provide alternative aid to the prisoner. Bounds v. Smith, 430 U.S. 817, 828 (1977); Johnson v. Avery, 393 U.S. 483 (1969). Such is not the case in this proceeding.
2. Failure to Prosecute: On October 22, 2003, Larry Lee Martin filed this action on behalf of numerous plaintiffs, although he was the only person who signed the original complaint. On October 29, 2003, the magistrate judge issued a notice of deficiency and order notifying the plaintiffs that they needed to file an amended complaint signed by each plaintiff in his/her capacity within thirty days. The order cautioned that failure to cure the deficiency within the thirty-day period would result in a recommendation that the complaint be dismissed for failure to prosecute.
As of the date of this recommendation, the following individuals have failed to submit a signed complaint in accordance with the deficiency order filed on October 29, 2003: Daniel Martin, Terry Lacy, Terrance Lacy, John Paul Martin, Brenda Martin, Marcus Jones, Ann Sharie Ayers, Lula William, Alton William, Alton William, Jr., Kevin William, Timothy William, Terry William, Jimmie Skinner, Kendra L. Johnson, and Kelvin Ayers.
While Daniel Martin signed the second motion to amend the complaint, that motion was denied by an order of even date.
Kendra L. Johnson and Kelvin Ayers were added for the first time in the list of addresses attached to the original complaint.
On December 11, 2003, the magistrate judge issued an order notifying the Plaintiffs who had signed the complaint, except for those designated as minors, that they needed to submit a request to proceed in forma pauperis (IFP) within thirty days from the date of filing of the order. A similar order was issued with respect to Daniel Martin and Tacola Coleman on January 21, 2004. Both orders cautioned the Plaintiffs that failure to comply with the orders would result in a recommendation that the complaint be dismissed for failure to prosecute. As of the date of this recommendation, the following Plaintiffs have failed to submit an IFP motion: Vernet or Vernette Ford, Latonya Johnson, Latoyia Johnson, Vernell Ford or Vernell Ford Johnson, Sharon Ferguson, Daryl Hartfield, Debbie Ferguson, and Tacola Coleman.
The signature page attached to the first amended complaint reflects that Vernet Ford is spelled "Vernette Ford."
The captions of the original and first amended complaint name Latonya Johnson. The list of addresses attached to the original complaint, as well as the list of signatures attached to the first amended complaint, reflect individuals by the name of Latonya Johnson as well as Latoyia Johnson. The docket sheet in this case only lists the latter name. However, since both individuals reside at the same address, it is undisputable that they both received notice of the deficiency order filed on December 11, 2003, and that they both declined to comply with it by submitting an IFP motion.
It appears that Vernell Ford, as listed in the caption of the original and first amended complaint is indeed Vernell Johnson as listed on the signature page attached to the first amended complaint. See Signature page attached to Mot. to file Second Amended Complaint listing an individual by the name of "Vernell (Ford) Johnson."
Rule 41(b), of the Federal Rules of Civil Procedure, allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1998). "This authority [under Rule 41(b)] flows from the court's inherent power to control its docket and prevent undue delays in the disposition of pending cases." Boudwin v. Graystone Ins. Co., Ltd., 756 F.2d 399, 401 (5th Cir. 1985) (citing Link v. Wabash R.R. Co., 370 U.S. 626 (1962)).
Plaintiffs Daniel Martin, Terry Lacy, Terrance Lacy, John Paul Martin, Brenda Martin, Marcus Jones, Ann Sharie Ayers, Lula William, Alton William, Alton William, Jr., Kevin William, Timothy William, Terry William, Jimmie Skinner, Kendra L. Johnson, and Kelvin Ayers have been given ample opportunity to submit a signed complaint in accordance with the deficiency order filed on October 29, 2003. Similarly Plaintiffs Vernet or Vernette Ford, Latonya Johnson, Latoyia Johnson, Vernell Ford or Vernell Ford Johnson, Sharon Ferguson, Daryl Hartfield, Debbie Ferguson, and Tacola Coleman have been given ample opportunity to submit IFP motions as set out in the deficiency orders filed on December 11, 2003, and January 21, 2004. Because they have refused or declined to comply with a court order, they should all be dismissed from this action without prejudice for lack of prosecution.
(3) Want of Prosecution by Plaintiff Jimmie Dewayne Martin: On February 19, 2004, the magistrate judge informed Plaintiff Jimmie Dewayne Martin that his IFP motion, filed on February 18, 2004, was insufficient to determine whether he was entitled to proceed IFP. The magistrate judge then ordered Plaintiff to complete and file an affidavit containing additional financial information within thirty days, unless prior to that date he paid the $150 filing fee.
As of the date of this recommendation, Jimmie Dewayne Martin has failed to comply with the order filed on February 19, 2004. Nor has he paid the $150.00 filing fee. Therefore, this action should be dismissed for want of prosecution as to Plaintiff Jimmie Dewayne Martin. See Fed.R.Civ.P. 41(b) and cases cited supra. RECOMMENDATION:
For the foregoing reasons, it is recommended that minors Larry Lee Smith, Derontaye Smith, and Travon Ford Martin be dismissed as plaintiffs in this action without prejudice.
It is further recommended that Plaintiff Larry Lee Martin's motion to act as next friend of John Paul Martin and minors Semetria B. Henderson and Jadarren L. Henderson be denied, and that John Paul Martin, Semetria B. Henderson, and Jadarren L. Henderson's claims in this action be dismissed without prejudice.
It is also recommended that Daniel Martin, Terry Lacy, Terrasnce Lacy, John Paul Martin, Brenda Martin, Marcus Jones, Ann Sharie Ayers, Lula William, Alton William, Alton William, Jr., Kevin William, Timothy William, Terry William, Jimmie Skinner, Kendra L. Johnson, Kelvin Ayers, Vernet or Vernette Ford, Latonya Johnson, Latoya Johnson, Vernell Ford or Vernell (Ford) Johnson, Sharon Ferguson, Daryl Hartfield, Debbie Ferguson, Tacola Coleman, and Jimmy Dewayne Martin be dismissed as plaintiffs without prejudice for want of prosecution pursuant to Federal Rule of Civil Procedure 41(b).
It is further recommended that the District Court enter partial final judgment dismissing the claims of Larry Lee Smith, Derontaye Smith, Travon Ford Martin, Semetria B. Henderson, Jadarren L. Henderson, Daniel Martin, Terry Lacy, Terrance Lacy, John Paul Martin, Brenda Martin, Marcus Jones, Ann Sharie Ayers, Lula William, Alton William, Alton William, Jr., Kevin William, Timothy William, Terry William, Jimmie Skinner, Kendra L. Johnson, Kelvin Ayers, Vernet or Vernette Ford, Latonya Johnson, Latoyia Johnson, Vernell Ford, Sharon Ferguson, Daryl Hartfield, Debbie Ferguson, Tacola Coleman, and Jimmy Dewayne Martin without prejudice.
It is further recommended that the claims of the remaining Plaintiffs, Larry Lee Martin, Sallie Marie Martin Alexander, Linda Martin, Freddrick Johnson, Cleo Ferguson, Mcyril Javon Henderson, be referred back to the magistrate judge for further proceedings.