United States District Court, D. South Carolina
Francisco K. Avoki; Prisca A. Avoki; William P. Avoki, Plaintiffs,
City of Chester, South Carolina; Police Department of Chester, South Carolina; Hy-Gloss Paint & Body Shop, Inc.; Cpl. Robert Martz; Ptl. Tyler Covington; Does I-XXX, Defendants.
J . GOSSETT UNITED STATES MAGISTRATE JUDGE
a civil action filed by pro se litigants. Under
Local Civil Rule 73.02(B)(2) (D.S.C.), pretrial proceedings
in this action have been referred to the assigned United
States Magistrate Judge.
Complaint, Plaintiff Francisco K. Avoki asserts that he will
prosecute this case on behalf of his adult son and
co-plaintiff, William P. Avoki, pursuant to Federal Rule of
Civil Procedure 17(c)(2). (Compl., ECF No. 1 at 3.) Francisco
claims William is “mentally challenged.” By order
dated March 28, 2019, the court provided Francisco the
opportunity to demonstrate that William is incompetent and
that Francisco should be appointed next friend to prosecute
this matter on behalf of William. (ECF No. 9.) See
Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990)
(providing, in a habeas context under 28 U.S.C. § 2242,
a “next friend” may initiate a case on behalf of
a minor or incompetent, but the next friend must (1)
“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, ” (2) “be truly dedicated
to the best interests of the person on whose behalf he seeks
to litigate, ” and (3) “have some significant
relationship with the real party in interest, ” and it
is the next friend's burden to make this showing);
Naruto v. Slater, 888F.3d 418, 422 (9th Cir. 2018)
(applying Whitmore to next friend status under Rule
17); Vargas v. Lambert, 159 F.3d 1161, 1167 (9th
Cir. 1998) (finding Whitmore requires the next
friend to provide “meaningful evidence” that the
incompetent person suffered from a mental disease, disorder,
or defect that substantially affected the person's
capacity to make an intelligent decision); cf. Chrissy F.
by Medley v. Miss. Dep't of Pub. Welfare, 883 F.2d
25, 27 (5th Cir. 1989) (stating courts should sua
sponte determine whether an infant's interests are
adequately protected under Rule 17, and that it is within the
district court's discretion to determine whether the
infant needs representation and who would best fill that
now files a motion to be appointed as next friend to William.
(ECF No. 11.) Francisco asserts William is currently detained
at the Chester County Jail on criminal charges. Francisco
claims a psychiatrist from the South Carolina Department of
Mental Health evaluated William's competency to stand
trial on those criminal charges and determined William was
not competent. Francisco has provided the court with a copy
of the psychiatrist's report. (ECF No. 12.) A key finding
of the report is that William does not have the capacity to
understand the proceedings against him or to assist in his
own defense. The court finds this evidence sufficient to
demonstrate that William is not competent to prosecute
this case on his own behalf.
the court finds Francisco Avoki, as William's father, is
dedicated to the best interests of William and has a
significant relationship with William, and thus, Francisco
Avoki should be appointed as next friend to William Avoki.
The court notes that William has submitted a letter
indicating he is aware of this litigation and that his father
has moved to be appointed as next friend. (ECF No. 11-1 at
3.) Accordingly, Francisco's motion to be appointed next
friend to William is granted.
pro se litigants may not represent each other in
federal court. 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.”); Myers v. Loudoun
Cty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005)
(“The right to litigate for oneself, however,
does not create a coordinate right to litigate for
others.”); see also Elustra v. Mineo,
595 F.3d 699, 705 (7th Cir. 2010) (collecting cases that
generally provide that a next friend may not bring a suit on
behalf of a minor party without the assistance of counsel).
Francisco, in his capacity as next friend, must retain
counsel for William within thirty (30) days of the date this
order is entered. Francisco may move to have counsel
appointed, but there is no right to appointed counsel in
civil actions. See Whisenant v. Yuam, 739 F.2d 160
(4th Cir. 1984), abrogated on other grounds by
Mallard, 490 U.S. 296; Cook v. Bounds, 518 F.2d
779, 780 (4th Cir. 1975).
THE CLERK OF COURT:
Clerk of Court shall mail a copy of this order to Plaintiffs.
If Plaintiffs fail to provide the items specified above to
the Clerk of Court within the period prescribed in this
order, the Clerk of Court shall forward the file to the
assigned United States Magistrate Judge for a recommendation.
See In Re: Procedures in Civil Actions Filed by
Non-Prisoner Pro Se Litigants, No. 3:07-mc-5015-JFA. If,
however, Plaintiffs provide this court with the items
specified above, the Clerk of Court should forward the file
to the assigned magistrate judge to determine if service of
process should be authorized.
IS SO ORDERED.
INFORMATION . . . PLEASE READ CAREFULLY WARNING TO PRO SE
PARTY OR NONPARTY FILERS
documents that you file with the court will be available to
the public on the internet through PACER (Public Access to
Court Electronic Records) and the court's Electronic Case
Filing System. CERTAIN PERSONAL IDENTIFYING
INFORMATION SHOULD NOT BE INCLUDED IN OR SHOULD BE
REMOVED FROM ALL DOCUMENTS BEFORE YOU SUBMIT THE
DOCUMENTS TO THE COURT FOR FILING.
5.2, Fed. R. Civ. P., provides for privacy protection of
electronic or paper filings made with the court. Rule 5.2
applies to ALL documents submitted
for filing, including pleadings, exhibits to pleadings,
discovery responses, and any other document submitted by any
party or nonparty for filing. Unless otherwise ordered by the
court, a party or nonparty filer should not put certain types
of an individual's personal identifying information in
documents submitted for filing to any United States District
Court. If it is necessary to file a document that already
contains personal identifying information, the personal
identifying information should be “blacked
out” or redacted prior to
submitting the document to the Clerk of Court for filing. A
person filing any document containing their own personal
identifying information waives the
protection of Rule 5.2(a) by filing the information without
redaction and not under seal.
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