Opinion
No. SA-02-CA-789-RF
August 13, 2003
ORDER STRIKING ALL PENDING MOTIONS AND ABATING LITIGATION
It has come to the Court's attention that Plaintiff Emerald Rodriguez's next friend and representative in this action, David Rodriguez, is admittedly representing her without a license to practice law. It is well-settled that a "non-attorney parent must be represented by counsel in bringing an action on behalf of his or her child." The Cheung court explained that "[i]t goes without saying that it is not in the interests of minors or incompetents that they be represented by non-attorneys. Where they have claims that require adjudication, they are entitled to trained legal assistance so their rights may be fully protected." Although the Fifth Circuit has not explicitly adopted this rule, it has acknowledged the widely-held principle that a "non-attorney parent cannot appear pro se on behalf of a minor child." In Harris, the Fifth Circuit discussed the Cheung opinion at length:
Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59, 61 (2d Cir. 1990).
Id.
Harris v. Apfel, 209 F.3d 413, 415 (5th Cir. 2000) (citing Devine v. Indian River County Sch. Bd., 121 F.3d 576 (11th Cir. 1997); Johns v. County of San Diego, 114 F.3d 874 (9th Cir. 1997); Osei-Afriyie v. Medical College of Pa., 937 F.2d 876 (3rd Cir. 1991); Meeker v. Kercher, 782 F.2d 153 (10th Cir. 1986)).
Our colleagues in the Second Circuit noted that "the choice to appear pro se is not a true choice for minors who under state law . . . cannot determine their own legal actions." Because there is no individual choice to proceed pro se, they concluded that "the sole policy at stake concerns the exclusion of non-licensed persons to appear as attorneys on behalf of others." Our colleagues conclude that it is not in the interests of minors to be represented by non-attorneys; rather, minors are entitled to trained legal assistance to fully protect their rights.
Harris, 209 F.3d at 415.
Although the Fifth Circuit ultimately held that a "non-attorney parent [is] permitted to sustain a pro se action on behalf of a minor child in [Social Security] appeals" it implicitly adopted the Second Circuit's rule concerning the representation of a child by a non-attorney in other civil litigations by distinguishing those cases from the Social Security context. At any rate, the Court is convinced by the reasoning advanced by fellow circuits, and finds that David Rodriguez, a non-attorney, cannot represent Emerald Rodriguez, a minor. The Court cannot continue to allow the litigation to progress until David Rodriguez has obtained proper legal representation.
Id. at 417 (emphasis added).
The state of Texas has adopted the same rule. See Jamison by Parker v. Mann, 957 S.W.2d 860, 861 (Tex.App.-Amarillo 1997) (holding that though Texas Rule of Civil Procedure 44, which allows representation of an incompetent person by a next friend, allows "the next friend to act akin to a guardian for the incompetent person vis-a-vis the lawsuit," it "does not grant unlicensed persons authority to practice law under the auspices of `next friend'").
The instant controversy arises out of an order entered by Defendant the Honorable Justice of the Peace James Rutt ("Honorable James Rutt") against David Rodriguez in a forcible detainer lawsuit. In that case, David Rodriguez argued that Plaintiff Emerald Rodriguez, his minor child, was the owner of the property in question and requested the appointment of a guardian ad litem to adjudicate title issues before ruling on the detainer question. The Honorable James Rutt declined, prompting this lawsuit, filed by David Rodriguez as Plaintiffs next friend, and framed as a violation of civil rights.
The United States Magistrate Judge, in denying Plaintiffs motion for rehearing on the application for in forma pauperis status, commented that
this is one of the many lawsuits Mr. Rodriguez has filed to challenge the attempts by his mortgage creditor or its assignee to regain possession of the home securing the mortgage loan. While the complaint claims that the minor child has an ownership interest in the property, that claim is without support in the record before me and appears to be an attempt to circumvent the prior orders of this court and others addressing Mr. Rodriguez's claims. Essentially this latest complaint is a blatant attempt to appeal an order of a state court under the guise of a civil rights suit. Clearly this maneuvering is not authorized by the civil rights statutes.
Order of the United States Magistrate Judge, dated Aug. 21, 2002 (Docket No. 5) (referencing the prior lawsuits filed in this Court by David Rodriguez: SA-99-CV-840, SA-99-CV-1009, SA-99-CV-1309 SA-OO-CV-72).
"A civil rights complainant has no right to the automatic appointment of counsel." The district court retains the discretion to appoint counsel, factoring in whether the case presents "exceptional circumstances" and whether doing so "would advance the proper administration of justice." Without delving into whether David Rodriguez's financial situation precludes him from hiring counsel (and noting that he has already been denied in forma pauperis status), the Court finds that none of the compelling circumstances are present here necessitating the appointment of counsel. Therefore, the Court will not request an attorney to aid David Rodriguez in representing Plaintiff Emerald Rodriguez as next friend. In addition, the Court has already denied David Rodriguez's request for the appointment of a guardian ad litem to represent Plaintiff and will not reconsider the issue. Thus, the only other option available to David Rodriguez is to retain counsel.
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (citing Branch v. Cole, 686 F.2d 264 (5th Cir. 1982) (per curiam); Wright v. Dallas County Sheriffs Dep't, 660 F.2d 623, 625-26 (5th Cir. 1981)).
Ulmer, 691 F.2d at 213 (citations omitted).
III. Conclusion
In sum, the Court ORDERS that all pending motions be STRICKEN. This ruling affects docket numbers 30, 37, 40, 41, 42, 43, 44, and 45.
Further, the Court ORDERS that the instant litigation be ABATED for thirty days. During this time, any submission signed by David Rodriguez on behalf of Plaintiff Emerald Rodriguez, as well as any submission of Defendants, shall also be stricken. The only permissible filing during this period shall be a notice of appearance by an attorney on behalf of David Rodriguez, next friend of Plaintiff Emerald Rodriguez. If, at the completion of thirty days, there has been no appearance of counsel, the Court will dismiss the action without prejudice. If, however, David Rodriguez is able to retain counsel, the Court will allow a third amendment to the complaint, at which time the litigation will resume. Signed this day of August, 2003.