United States District Court, D. Colorado
RECOMMENDATION OF UNITED STATES MAGISTRATE
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the [amended] Application of
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241
(ECF No. 15). Applicant, Frederick Banks, purports to
proceed pro se as “next friend” to
Melanie Franklin. The matter has been referred to this
Magistrate Judge for recommendation (ECF No.
The Court has considered the entire case file, the applicable
law, and is sufficiently advised in the premises. This
Magistrate Judge respectfully recommends that the [amended]
Application and this action be dismissed without prejudice.
Factual and Procedural Background
Frederick Banks, is detained in the Allegheny County Jail in
Pittsburgh, Pennsylvania. He initiated this action on
February 5, 2019, by submitting pro se a Petition
for Writ of Habeas Corpus Under 28 U.S.C. § 2241 (ECF
No. 1) and a Motion and Declaration in Support of Motion to
Proceed In Forma Pauperis. (ECF No. 2).
both the original and amended pleadings, Mr. Banks challenges
the detention of Melanie Franklin, who is a citizen of Iran,
at the Denver County Jail or Denver City Detention Center.
Mr. Banks asserts that Ms. Franklin, who is a Muslim, was
arrested without probable cause, in violation of the Fourth
Amendment, and that her continued detention violates her
rights under the First Amendment free exercise clause and the
Fourteenth Amendment due process clause. Mr. Banks further
alleges that Ms. Franklin was unlawfully placed under
surveillance, in violation of the Foreign Surveillance
Intelligence Act, 50 U.S.C. § 1801, et seq. For
relief, Mr. Banks asks that Ms. Franklin be released
unconditionally from custody or on bond.
February 6 Order, the Court directed Mr. Banks to show cause
why he should be allowed to prosecute this action as Ms.
Franklin's next friend, pursuant to 28 U.S.C. §
2242. (ECF No. 4). Magistrate Judge Gallagher warned Mr.
Banks that he may not act as Ms. Lawson's next friend
unless he is represented by counsel. See Meeker v.
Kercher, 782 F.2d 153, 154 (10th Cir. 1986)
(per curiam) (holding that a minor child cannot bring suit
through a parent acting as next friend unless the parent is
represented by counsel). Magistrate Judge Gallagher also
warned Mr. Banks and Ms. Franklin that failure to show cause
by the deadline would result in dismissal of this action
without further notice. (Id.). The February 6 Order
also directed Mr. Banks to resubmit his pleading on the
court-approved form for filing an Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241, and to
address the $5.00 filing fee. (Id.). A copy of the
February 4 Order was sent to Mr. Banks in Pennsylvania, and
to Ms. Franklin at two different Denver detention facilities,
but the copies mailed to Ms. Franklin were returned to the
Court as undeliverable. (ECF Nos. 7, 8 and 10). One of the
returned envelopes addressed to Ms. Franklin include a
notation that she was “released.” (ECF No. 8).
Due to a clerical error, Mr. Banks did not receive a copy of
the February 6 Order until mid-March. (ECF No. 11). In an
April 3, 2019 minute order, the Court directed the clerk of
the court to send Mr. Banks copies of the court-approved
forms needed to cure the filing deficiencies and granted him
an extension of time to comply with the February 6 Order.
(ECF No. 13).
April 26, 2019, Mr. Banks filed an [amended] Application for
a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241,
which he also designated as his response to the February 6
Order to Show Cause. (ECF No. 15). Mr. Banks also filed a
Prisoner's Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action.
(ECF No. 14).
Court construes the [amended] Application for a Writ of
Habeas Corpus Pursuant to 28 U.S.C. § 2241 liberally
because Mr. Banks is not represented by an attorney. See
Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
However, the Court will not act as an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
Banks maintains that he has standing to pursue federal habeas
relief on behalf of Ms. Franklin, pursuant to 28 U.S.C.
§ 2242. The statute provides that an “application
for a writ of habeas corpus shall be in writing signed and
verified by the person for whose relief it is intended or by
someone acting in his behalf.” 28 U.S.C. § 2242.
However, as discussed in the February 6 Order, Ms. Franklin
should be named as the applicant, not Mr. Banks. See
Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (noting
that a “next friend” does not himself or herself
become a party to the habeas corpus action he or she is
standing under § 2242 is not granted automatically to
everyone seeking to proceed on another's behalf. See
Whitmore, 495 U.S. at 163. The Supreme Court has
identified two requirements that must be met to have standing
to litigate a habeas corpus action on behalf of another
person under § 2242. Id. These requirements
First, a “next friend” must 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. Second, the
“next friend” must be truly dedicated to the best
interests of the person on whose behalf he seeks to litigate.
Id. In addition to these two prerequisites, it has
been suggested that a “next friend” must have
some significant relationship with the real party ...