United States District Court, S.D. Florida
SUA SPONTE REPORT DISMISSING COMPLAINT
cause is before court sua sponte after it became
apparent that the named Plaintiff has not been the party
filing pleadings and motions. The initial complaint was filed
on August 29, 2018. (DE# 1). It purported to be signed by the
named Plaintiff with a notarized signature. (DE# 1, p. 5).
Attached to the complaint was an Application to Proceed in
District Court without Prepayment of Fees or Costs. (DE# 3).
This document was also purportedly signed by the named
Plaintiff. (DE# 3, p. 1).
the Plaintiff had failed to attach a copy of his six-month
jail prisoner account, the motion to proceed in forma
pauperis was denied and he was ordered to file a proper
motion with his six-month account. (DE# 5). On November 20,
2018, a second motion to proceed in forma pauperis
was filed. (DE# 7). This motion was signed “Broderick
Jabbar Williams (POA).” (DE# 7, p. 2). The motion
indicated that the Plaintiff was incarcerated, however the
return address on the envelope indicated that the motion was
not mailed from the location where the Plaintiff was
incarcerated. (DE# 7, p. 3). On the same day the motion was
received, a notice of change of address was received. (DE#
6). This notice was also purportedly signed by the Plaintiff.
The motion to proceed in forma pauperis was denied
because it was not signed by the Plaintiff. (DE# 9). The
Plaintiff was ordered to file a proper motion. (DE# 9).
December 27, 2018, a pleading entitled “Notice of
Default in Dishonor and Acceptance of Commercial Liens and
Additional Notice of Fault V. for Damage and Satisfied Liens
Affidavit of Notice” was filed with the court. (DE#
10). This document was signed “Broderick J. Williams
(POA).” (DE# 10, p. 7). The document was not responsive
to the order to file a proper motion to proceed in forma
January 11, 2019, the Plaintiff filed a motion for an
extension of time to file his motion to proceed in forma
pauperis. (DE# 12). The motion was purportedly signed by
the Plaintiff, however attached to the motion was a document
entitled “Power of Attorney” in which the
Plaintiff appointed his mother Dawn Grasty as his
“lawful attorney-in-fact.” (DE# 12, p. 2-3). Also
attached was a document entitled “Temporary
Guardianship Agreement” which attempted to give
temporary guardianship of two children to Dawn Grasty. (DE#
12, p. 4). This document contains an obvious error in that it
identifies one of the children's date of birth as August
8, 2018, but the document was signed on July 31, 2018. The
return address on the mailing envelope was Dawn Grasty's
address. The purpose of filing this document is unclear.
February 7, 2019, a Notice of Change of Address was filed
with the court. (DE# 14). The notice was signed by Dawn Rene
Grasty and asked the court to recognize her as
attorney-in-fact for the Plaintiff. Additional pleadings were
filed on April 3, 2019. (DE# 16, 17, 18, 19). These included
a notice of change of address (DE# 16) was signed by the
Plaintiff, indicating that he is no longer incarcerated. Two
other documents (DE# 17, 18) are signed by both the Plaintiff
and Dawn Grasty. The Plaintiff states in both documents that
he has granted his mother power of attorney to represent him
in these proceedings. The final document (DE# 19) appears to
be a petition by Dawn Grasty to have the Plaintiff committed
to a mental health hospital until he can be deemed competent
and stable. She has attached exhibits in support of this
petition indicating that the Plaintiff suffers from various
become evident that the named Plaintiff has not been pursuing
this action. It seems that the Plaintiff's mother has
been the person pursuing this action under the belief that
she may do so pursuant to the “power of
attorney.” It appears that Dawn Grasty is attempting to
proceed as “next friend” of the named Plaintiff.
For the reasons set forth in this report the complaint should
be dismissed without prejudice.
Federal Rules of Civil Procedure provide that an incompetent
person who does not have a duly appointed representative may
sue by a “next friend.” Fed.R.Civ.P. 17(c)(2).
The individual seeking next friend status has the burden to
establish standing to proceed on behalf of the real party and
thereby to invoke the jurisdiction of the federal courts.
Whitmore v. Arkansas, 495 U.S. 149, 162 (1990).
Whitmore, the Supreme Court detailed the
requirements, stressing that next 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. First, the would-be next friend must prove that
the real party in interest cannot pursue his own cause due to
some disability such as mental incompetence or lack of access
to court. Id. at 163-65. Second, the next friend
must show some relationship or other evidence that would
suggest that the next friend is truly dedicated to the
interests of the real party in interest. Id. at
163-64. Ultimately, "the burden is on the 'next
friend' clearly to establish the propriety of [her]
status, and thereby justify the jurisdiction of the
court." Id. at 164.
Dawn Grasty could establish that she should be permitted to
proceed as “next friend” she is not be permitted
to proceed pro se. See Weber v. Garza, 570
F.2d 511, 513 (5th Cir. 1978)(“individuals not licensed
to practice law by the state may not use the ‘next
friend' devise as an artifice for the unauthorized
practice of law”). In a similar situation the Eleventh
Circuit found that a mother, who was not an attorney, could
not act as legal counsel for her minor child. Fuqua v.
Massey, 615 Fed.Appx. 611 (11th Cir. 2015)(citing
Devine v. Indian River Cnty. Sch Bd., 121F.3d 576,
581 (11th Cir. 1997). Since Grasty cannot proceed as the
attorney for the named Plaintiff, any pleadings and or
motions filed by her are a nullity.
this action has been prosecuted by the Plaintiff's
mother, rather than by the Plaintiff himself, the complaint
should be dismissed without prejudice to Broderick Williams
filing a complaint along with either a proper motion to
proceed in forma pauperis, or the filing fee.