United States District Court, D. Colorado
A. BRIMMER, CHIEF JUDGE
matter is before the Court on Plaintiff Leal's Objection
to Court's Order (Docket # 69) [Docket No. 75], filed on
January 17, 2019.
filed this pro se lawsuit on April 18, 2017. Docket
No. 1. The operative complaint asserts claims for disability
discrimination and retaliation against various correctional
officers at Arkansas Valley Correctional Facility.
See Docket No. 12. On December 10, 2018, the
magistrate judge denied plaintiff's motion to compel
discovery, finding that plaintiff had failed to comply with
the magistrate judge's procedures for resolving discovery
disputes. Docket No. 69 at 1-2. The magistrate judge also
granted the parties' requests to amend various deadlines
in the case. See Id. at 3. In doing so, the
magistrate judge noted it was clear that Dean Carbajal, a
non-lawyer and non-party to the case, was continuing to draft
“most, if not all, of Plaintiff's filings”
despite the magistrate judge's previous warnings that
plaintiff could not be represented by a non- attorney.
Id. at 2-3. The magistrate judge cautioned that
“future filings drafted and submitted by Mr. Carbajal
are subject to being stricken without further notice.”
Id. at 3. On January 17, 2019, plaintiff filed an
objection to the magistrate judge's order arguing that
Mr. Carbajal has a First Amendment right to represent
plaintiff in this lawsuit and that plaintiff has an attendant
right to be so represented. See Docket No. 75.
plaintiff's objection pertains to a non-dispositive
discovery matter, the Court will “modify or set aside
any part of the order that is clearly erroneous or is
contrary to law.” Fed.R.Civ.P. 72(a); Hutchinson v.
Pfeil, 105 F.3d 562, 566 (10th Cir. 1997). The clearly
erroneous standard “requires that the reviewing court
affirm unless it ‘on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed.'” Ocelot Oil Corp. v. Sparrow
Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)
(quoting United States v. United States Gypsum Co.,
333 U.S. 364, 395 (1948)). The Court construes
plaintiff's objection liberally because he is not
represented by an attorney. See Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991).
objection is meritless for three reasons. First, it is
untimely. Under Fed.R.Civ.P. 72(a), a party has fourteen days
after being served with a copy of a magistrate judge's
non-dispositive order to serve and file objections. Because
the magistrate judge entered his order on December 10, 2018,
plaintiff's objection was due long before its actual
filing date of January 17, 2019. Even if the Court were to
construe plaintiff's motion for an extension of time,
Docket No. 71, as applying to the magistrate judge's
order denying plaintiff's motion to compel,
plaintiff's objection would still be untimely.
See Docket No. 72 (granting motion for an extension
of time and allowing plaintiff until January 14, 2019 to file
objection also fails because it bears no relationship to the
magistrate judge's ruling, which was to deny
plaintiff's motion to compel discovery and grant the
parties' requests to amend the scheduling order. The
portion of the order addressing plaintiff's
representation by Mr. Carbajal merely reiterates a warning
given by the magistrate judge on prior occasions. See,
e.g., Docket No. 39 (advising plaintiff that he may not
be represented by a non-attorney, including Mr. Carbajal).
it is well established that a pro se litigant may
not represent another party 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 . . . .”); Perry v. Stout, 20
Fed.Appx. 780, 782 (10th Cir. 2001) (unpublished)
(“Non-attorney pro se litigants cannot represent other
pro se parties.”); Herrera-Venegas v.
Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982)
(“By law an individual may appear in federal courts
only pro se or through legal counsel”); Matthews v.
Cordeiro, 144 F.Supp.2d 37, 38 (D. Mass. 2001)
(“Under well-settled law, an individual who is not an
attorney admitted to practice before this court is not
authorized to submit pleadings (including a complaint) or in
any other manner appear on behalf of another person or
entity.”). While the authorities plaintiff cites
suggest that a prisoner may be entitled to First Amendment
protection for activities conducted on behalf of other
prisoners, see, e.g., Herron v. Harrison,
203 F.3d 410, 415-16 (6th Cir. 2000) (recognizing that
inmate's efforts to assist other prisoners with their
legal claims constitutes protected conduct for purposes of a
retaliation claim “when the inmate receiving the
assistance would otherwise be unable to pursue legal
redress”); Smith v. Maschner, 899 F.2d 940,
950 (10th Cir. 1990) (recognizing “some controversy in
the circuits on whether a prisoner has standing to
assert” his fellow inmates' right of access to the
courts as the basis for a retaliation claim); Adams v.
James, 784 F.2d 1077, 1081 (11th Cir. 1986) (stating
that a “first amendment claim by an inmate does not
fail simply because the allegedly protected activities were
conducted on behalf of others”), none of these cases
supports Mr. Carbajal's ability to represent plaintiff, a
non-prisoner, in this lawsuit. Plaintiff's reliance on
the “next friend” doctrine in Fed.R.Civ.P. 17 is
likewise inapposite because “pro se litigants . . . may
not bring ‘next friend' suits.” Sutton v.
Doe 1, 736 Fed.Appx. 212, 213 (10th Cir. 2018)
(unpublished) (citing Meeker v. Kercher, 782 F.2d
153, 154 (10th Cir. 1986)). For the foregoing reasons, it is
that Plaintiff Mr. Leal's Objection to Court's Order
(Doc # 69) [Docket No. 75] is OVERRULED.
The fact that Mr. Carbajal, a non-party
to this case, placed the objection in the legal mail system
on January 14, 2019, Docket No. 75 at 4, does not entitle
plaintiff - a non-prisoner - to the ...