United States District Court, S.D. Mississippi, Southern Division
MICHAEL W. HEFLIN, # L4735 PLAINTIFF
HARRISON COUNTY ADULT DETENTION CENTER, HARRISON COUNTY SHERIFF'S DEPARTMENT, GULF COAST COMMUNITY COLLEGE, and HARRISON COUNTY DEFENDANTS
MEMORANDUM OPINION AND ORDER OF DISMISSAL
GUIROLA, JR. UNITED STATES DISTRICT JUDGE
case is before the Court sua sponte. Pro se
Plaintiff Michael W. Heflin is a pretrial detainee at the
Hancock County Jail, and he brings this action challenging
the conditions of his son's confinement. The Court has
considered and liberally construed the pleadings. As set
forth below, this case is dismissed.
AND PROCEDURAL HISTORY
Plaintiff Michael W. Heflin is currently detained at the
Hancock County Jail, this Complaint concerns his son,
incarcerated at the Harrison County Adult Detention Center.
Defendants include Harrison County, its jail and
Sheriff's Department, and Gulf Coast Community College.
Gulf Coast allegedly administers the Detention Center's
alleges that his son is eighteen years old and that Harrison
County denied him “the right to further his education
through the G.E.D. program” at the Harrison County
Detention Center. (1st Resp.  at 1). He was allegedly
denied participation in the program due to the fact that he
has a “gun charge.” Id. Plaintiff
maintains this is not a proper reason to deny his son
eligibility for the GED program, because in other jails,
“anyone can pursue their GED! . . . He should be able
like anyone to attend.” (Compl. at 5). However, in the
Harrison County jail, Plaintiff asserts that no violent
felons, felons with a gun charge, or anyone with an
aggravated assault charge is allowed in the GED program.
Plaintiff contends that without the GED, his son is
ineligible to transfer to a juvenile detention center.
brings this action under 42 U.S.C. § 1983 on behalf of
his son. Plaintiff seeks an injunction allowing his son to
participate in the jail's GED program.
Prison Litigation Reform Act of 1996, applies to prisoners
proceeding in forma pauperis in this Court. The
statute provides in pertinent part that, “the court
shall dismiss the case at any time if the court determines
that . . . the action . . . (i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted;
or (iii) seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. §
1915(e)(2)(B). The statute “accords judges not only the
authority to dismiss a claim based on an indisputably
meritless legal theory, but also the unusual power to pierce
the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly
baseless.” Denton v. Hernandez, 504 U.S. 25,
32 (1992). “[I]n an action proceeding under [28 U.S.C.
§ 1915, a federal court] may consider, sua sponte,
affirmative defenses that are apparent from the record even
where they have not been addressed or raised.” Ali
v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990).
“Significantly, the court is authorized to test the
proceeding for frivolousness or maliciousness even before
service of process or before the filing of the answer.”
Id. The Court has permitted Plaintiff to proceed
in forma pauperis in this action. His Complaint is
subject to sua sponte dismissal under § 1915.
attempts to represent his son pro se. Because an
unrepresented minor is involved, the Court must first
consider its role under Rule 17, before the Court may rule on
the minor's claims. Fed.R.Civ.P. 17(c)(2); Chrissy F.
ex rel. Medley v. Miss. Dep't of Pub. Welfare, 883
F.2d 25, 27 (5th Cir. 1989).
pro se party cannot represent another. Gonzales
v. Wyatt, 157 F.3d 1016, 1020-22 (5th Cir. 1998).
Therefore, a minor child generally cannot bring suit through
a pro se next friend or guardian. Aduddle v.
Body, 277 Fed.Appx. 459, 462 (5th Cir. May 7, 2008)
(pro se guardian could not represent granddaughter).
See also, Elustra ex rel. Elustra v. Mineo, 595 F.3d
699, 705 (7th Cir. 2010); Myers v. Loudon Cty. Pub.
Schs., 418 F.3d 395, 401 (4th Cir. 2005); Shepherd
v. Wellman, 313 F.3d 963, 970-71 (6th Cir. 2002);
Osei-Afriyie ex rel. Afriyie v. Med. Coll. of Pa.,
937 F.2d 876, 878 (3d Cir. 1991); Cheung v. Youth
Orchestra Found., Inc., 906 F.2d 59, 61 (2d Cir. 1990);
Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.
1986). But see, Harris ex rel. Harris v. Apfel, 209
F.3d 413, 417 (5th Cir. 2000) (pro se parent can
represent her child in a social security appeal because
administrative rules allow it and the parent's interests
are coextensive with the child's). Plaintiff is
incarcerated, not living with his son, and is not represented
by an attorney. Indeed, Plaintiff alleges that only “as
far as [he] know[s], ” his son is still in jail and not
in the GED program. (2d Resp.  at 1). Therefore,
Plaintiff may not represent his son in this civil action.
Court “must appoint a guardian ad litem-or issue
another appropriate order-to protect” Plaintiff's
son. Fed.R.Civ.P. 17(c)(2). The Fifth Circuit Court of
Appeals has set forth the procedure for a court's duty
under Rule 17:
We spell out the rule to mean: (1) as a matter of proper
procedure, the court should usually appoint a guardian ad
litem; (2) but the Court may, after weighing all the
circumstances, issue such order as will protect the minor . .
. in lieu of appointment of a guardian ad litem; (3) and may
even decide that such appointment is unnecessary, though
only after the Court has considered the matter and made a
judicial determination that the infant . . . is protected
without a guardian.
Adelman ex rel. Adelman v. Graves, 747 F.2d 986, 989
(5th Cir. 1984). The Court “should consider that access
to the courts by aggrieved persons should not be unduly
limited, particularly . . . where an incompetent person
raises allegations of violations of his rights attributable
to his custodians, and further alleges a failure to act on
the part of his legal guardian.” Id.
seeks an injunction ordering his son's admittance to the
jail's GED program. He was at least 18 years old as of
July 10, 2018; therefore, he is not currently a compulsory
school age child. Miss. Code Ann. § 37-13-91(2)(f). As a
minor, the statute of limitations would not begin to accrue
on his claims until after he reaches 21, the age of majority
in Mississippi. Miss. Code Ann. §§ 11-46-11(4),
15-1-59; Hardin v. Straub, 490 U.S. 536, 543 (1989)
(applying state tolling statutes to § 1983); Pollard
v. Sherwin-Williams Co., 955 So.2d 764, 770 (&18)
(Miss. 2007). After considering the matter, the Court finds,
under the ...