Berrios v. New York City Housing Authority

08-4832-CV
Berrios v.
New York City
Housing Authority

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 2008

(Motions submitted:
February 25, 2009
Decided: April 23, 2009)

Docket No. 08-4832-CV

JESUS BERRIOS, as Guardian Ad Litem of ANGEL M.
TRAVIESO,

Plaintiff-Appellant,

\- V. -

NEW YORK CITY HOUSING AUTHORITY,

Defendant-Appellee.

Before: KEARSE and KATZMANN, Circuit Judges, BIANCO, District
Judge*

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Motions by unrepresented non-attorney litigant for, inter
alia, appointment of counsel and leave to proceed in forma
pauperis on appeal from a judgment of the United States District
Court for the Southern District of New York, Loretta A. Preska,
Judge, dismissing, for failure to state a claim on which relief
may be granted, his complaint on behalf of another person.

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\* Honorable Joseph F. Bianco, of the United States District Court
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for the Eastern District of New York, sitting by designation.

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Motion for in forma pauperis status granted for purpose of
vacating judgment; other motions denied as moot; matter remanded
for continuation of the action with assistance of counsel or for
dismissal of the action without prejudice.

JESUS BERRIOS, Plaintiff-Appellant pro se,
Staten Island, New York.

KEARSE, Circuit Judge:

Plaintiff Jesus Berrios, a non-attorney who is not
represented by counsel, and whose complaint asserts claims only on
behalf of Angel M. Travieso, identified as his nephew and alleged
to be incompetent, seeks to appeal from a judgment of the United
States District Court for the Southern District of New York,
Loretta A. Preska, Judge, sua sponte dismissing his complaint
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pursuant to 28 U.S.C. § 1915 (e) (2) (B) (ii) for failure to state a
claim on which relief may be granted. Berrios has moved in this
Court for various relief, including leave to proceed in forma
pauperis, assignment of counsel, and appointment of himself as
Travieso's guardian ad litem. Because a "pro se" non-attorney is
not allowed to represent another entity in federal court
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litigation, we grant Berrios's motion to proceed in forma pauperis
for purposes of vacating the judgment of the district court and
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remanding for further proceedings, and we deny his remaining
motions as moot.

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<!-- PageHeader="I. BACKGROUND" -->

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The complaint filed by Berrios alleged that Travieso is
Berrios's nephew and is "an alleged incompetent person, residing
at Wavecrest Home For Adults." (Complaint | 10.) It asserted
claims that defendant New York City Housing Authority had dealt
improperly with Travieso's application for public housing, in
violation of numerous federal laws, including 42 U.S.C. §§ 1981,
1982, 2000d, 1437d, 3604, and 12132, and various state laws.
Berrios moved to be appointed Travieso's guardian ad litem, to
proceed in forma pauperis, and to have the district court appoint
counsel to represent him. In support of his motion for
appointment as guardian ad litem, Berrios stated that although
Travieso "has not been declared to be of unsound mind upon any
inquisition" and has not had "any guardian . . . specially
appointed for" him, he "is of unsound mind by reason of mental
retardation and is incapable of the management of his affairs."

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(Berrios Motion for Appointment of Guardian Ad Litem | 2.)
Berrios added to the motion a handwritten note stating, "I was the
representative payee for . . . Travieso before the [Social
Security Administration] " and "manage [d] all his personal

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affairs . . . until May, 2004. I do not have a power of attorney.

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I am no longer his representative payee because since 5/4/04 he is
a resident at Wavecrest Home for Adults."

In an Order of Dismissal dated August 25, 2008 ("District
Court Order"), the district court granted Berrios's motion to

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proceed in forma pauperis, but it "decline [d] to rule on [his]
motion to proceed as Mr. Travieso's guardian ad litem because he
fails to allege a claim on which relief may be granted, " District
Court Order at 3. After analyzing the federal claims asserted in
the complaint, the court dismissed the complaint sua sponte
pursuant to 28 U.S.C. § 1915 (e) (2) (B) (ii), which provides that
when a party proceeds in forma pauperis, "the court shall dismiss
the case at any time if the court determines that . . . the
action . . . fails to state a claim on which relief may be
granted." The district court declined to exercise supplemental
jurisdiction over the asserted state-law claims. It certified
pursuant to 28 U.S.C. § 1915 (a) (3) that any appeal from its order

of dismissal "would not be taken in good faith, " District Court
Order at 11, thereby revoking Berrios's in forma pauperis status
for purposes of appeal, see generally Miranda v. United States,
455 F.2d 402, 403 (2d Cir. 1972) (citing identical language in
predecessor statute) .

Berrios has appealed and has moved in this Court
principally for (a) leave to proceed on appeal in forma pauperis,
and related relief, (b) appointment of himself as Travieso's
guardian ad litem, (c) appointment of counsel, and (d) an award of
attorney's fees in the event that counsel is appointed. For the
reasons that follow, we grant Berrios's motion to proceed in forma
pauperis for purposes of vacating the judgment, and we remand for
the district court either to allow continuation of the action with

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Travieso represented by a suitable guardian ad litem and counsel
or to dismiss the action without prejudice.

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# II. DISCUSSION

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In the federal courts, "parties may plead and conduct
their own cases personally or by counsel." 28 U.S.C. § 1654.
This provision authorizes only "two types of representation:
'that by an attorney admitted to the practice of law by a
governmental regulatory body and that by a person representing
himself.'" Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007)
("Lattanzio") (quoting Eagle Assocs. v. Bank of Montreal, 926
F.2d 1305, 1308 (2d Cir. 1991) ("Eagle Assocs. ") ). Although
§ 1654 thus recognizes that an individual generally has the right
to proceed pro se with respect to his own claims or claims against
him personally, " [t]he statute does not permit 'unlicensed laymen
to represent anyone else other than themselves. '" Lattanzio, 481
F.3d at 139 (quoting Eagle Assocs., 926 F.2d at 1308) ; see, e.g.,
Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (" [B]ecause
pro se means to appear for one's self, a person may not appear on
another person's behalf in the other's cause. ") .

The reasons for requiring that a party, unless exercising
his constitutional right to represent himself, be represented by
an attorney are principally that the conduct of litigation by a
non-attorney creates unusual burdens for his adversaries and the
court, as well as for the party he would represent. "The lay

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litigant frequently brings pleadings that are awkwardly drafted,
motions that are inarticulately presented, [and] proceedings that
are needlessly multiplicative."
Jones v. Niagara Frontier
Transportation Authority, 722 F.2d 20, 22 (2d Cir. 1983) ; see also
id. (the lay litigant also lacks many of the attorney's ethical
responsibilities, such as to avoid litigating unfounded or
vexatious claims) .

Thus, we have held that a layperson may not represent a
corporation of which he is the sole shareholder, see, e.g., id.
at 23; a limited liability company of which he is the sole member,
see, e.q., Lattanzio, 481 F.3d at 140; a partnership in which he
is a partner, see, e.g., Eagle Assocs., 926 F.2d at 1308-10; a
co-party in the litigation, see, e.q., McCall v. Pataki, 232 F.3d
321, 322 (2d Cir. 2000); an estate that has beneficiaries or
creditors other than the lay litigant, see, e.g., Pridgen v.
Andresen, 113 F.3d 391, 393 (2d Cir. 1997) ; or a minor child, see,
e.g., Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906
F.2d 59, 61 (2d Cir. 1990) ( "Cheung") ; Wenger v. Canastota Central
School District, 146 F.3d 123, 125 (2d Cir. 1998) ( "Wenger")
(holding, inter alia, that where no party raised the issue of a
child's representation by a non-attorney, the district court was
required to raise the issue sua sponte), overruled on other
grounds by Winkelman v. Parma City School District, 550 U.S. 516
(2007) .

In Cheung, for example, noting that the "statutory right
to proceed pro se reflects a respect for the choice of an

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individual citizen to plead his or her own cause, " we held that a
father was not allowed to bring suit on behalf of his minor
daughter without representation by counsel. 906 F.2d at 61
(emphasis added) . We noted that where an individual lacks the

capacity to sue due to minority, " [t]here is
no individual
choice to proceed pro se for courts to respect." Id. We ruled
that "no issues concerning th[e] litigation should be decided
until the counsel issue is resolved, " and we remanded to give the
father "an opportunity to retain counsel or to request the
appointment of counsel, " and stated that if he did not proceed to
"retain counsel and if the district court decline [d] to appoint
counsel, the complaint should be dismissed without prejudice."
Id. at 62. See also Wenger, 146 F.3d at 125 (if non-attorney
father "is unable on his own to find an attorney to represent his
son, " and if "the court concludes that counsel should not be
appointed for" the son, "the court should dismiss the claims
brought on [the son's] behalf without prejudice") .

These principles apply equally with respect to
non-attorneys' attempts to bring suit on behalf of adults who are
not competent to handle their own affairs, as "[i]t is an ancient
precept of Anglo-American jurisprudence that infant and other
incompetent parties are wards of any court called upon to measure
and weigh their interests, " Neilson v. Colgate Palmolive Co., 199
F.3d 642, 654 (2d Cir. 1999) (internal quotation marks omitted) ;
see generally Cheung, 906 F.2d at 61 ("It goes without saying that
it is not in the interests of minors or incompetents that they be

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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. ") ; see, e.g., Mann v.
Boatright, 477 F.3d 1140, 1149-50 (10th Cir. 2007) (applying
Cheung to an adult daughter seeking to represent her mentally
incompetent father, where the daughter, although an attorney, was
not admitted to practice -- even pro hac vice -- in the state in which
her claims on behalf of her father were asserted), cert. denied,
128 S. Ct. 897 (2008) .

A minor or incompetent person normally lacks the capacity
to bring suit for himself. See, e.g., N.Y. C. P.L.R. 1201
(Mckinney 1997) ; Fed. R. Civ. P. 17(b) (1) (capacity of an
individual claim owner to sue is determined by "the law of the
individual's domicile") . Rule 17(c) provides that a minor or
incompetent person may be represented by a general guardian, a
committee, a conservator, or a similar fiduciary, see Fed. R. Civ.
P. 17 (c) (1), and that

[a] minor or an incompetent person who does not have
a duly appointed representative may sue by a next
friend or by a guardian ad litem. The court must
appoint a guardian ad litem -- or issue another
appropriate order -- to protect a minor or incompetent
person who is unrepresented in an action,

Fed. R. Civ. P. 17 (c) (2) (emphasis added). Thus, as to a claim on
behalf of an unrepresented minor or incompetent person, the court
is not to reach the merits without appointing a suitable
representative.

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The fact that a minor or incompetent person must be
represented by a next friend, guardian ad litem, or other

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fiduciary does not alter the principle embodied in § 1654 that a
non-attorney is not allowed to represent another individual in
federal court litigation without the assistance of counsel. If
the representative of the minor or incompetent person is not
himself an attorney, he must be represented by an attorney in
order to conduct the litigation. " [W]ithout . . . counsel, the
case will not go forward at all." Wenger, 146 F.3d at 125.

A party in a civil case has no constitutionally guaranteed
right to the assistance of counsel. See, e.g., United States v.
Coven, 662 F.2d 162, 176 (2d Cir. 1981), cert. denied, 456 U.S.
916 (1982) . Thus, although " [t]he court may request an attorney
to represent any person unable to afford counsel, " 28 U.S.C.
§ 1915 (e) (1), it may properly deny a motion to appoint counsel --
even for a minor or incompetent person -- "when it is clear that no
substantial claim might be brought on behalf of such a party,"
Wenger, 146 F.3d at 125.

What the court may not properly do, however, is make a
merits determination of claims filed on behalf of a minor or
incompetent person who is not properly represented. See, e.g.,
id. at 125; Cheung, 906 F.2d at 62; Fed. R. Civ. P. 17 (c) (2) .
Accord Gardner by Gardner v. Parson, 874 F.2d 131, 141 (3d Cir.
1989) ("Because Patsy [a severely mentally retarded teenager] was
without a representative when the court dismissed her claims, and
was otherwise unprotected, the court was without authority to
reach the merits of those claims. "). As the sufficiency of a
complaint to state a claim on which relief may be granted is a

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question of law, see, e.g., De Jesus v. Sears Roebuck & Co.,
Inc., 87 F.3d 65, 69 (2d Cir. ), cert. denied, 519 U.S. 1007
(1996) ; McCall v. Pataki, 232 F.3d at 322-23, the dismissal for
failure to state a claim is a final judgment on the merits and
thus has res judicata effects, see, e.g., Federated Department
Stores, Inc. v. Moitie, 452 U.S. 394, 398, 399 & n.3 (1981)
(discussing dismissal pursuant to Fed. R. Civ. P. 12 (b) (6) ) ;
Cieszkowska v. Gray Line New York, 295 F.3d 204, 205 (2d Cir.
2002) ("Cieszkowska") (discussing dismissal pursuant to 28 U.S.C.
§ 1915) . Such a judgment "precludes the parties or their privies
from relitigating issues that were or could have been raised in
that action." Federated Department Stores, Inc., 452 U.S. at 398.
"Even claims based upon different legal theories are barred
provided they arise from the same transaction or occurrence. "
Cieszkowska, 295 F.3d at 205 (internal quotation marks omitted) .
Thus, in Cieszkowska, we affirmed the dismissal of an in forma
pauperis complaint on the ground of res judicata where the
plaintiff's prior complaint arising out of the same events, albeit
raising a different legal theory, had been dismissed pursuant to
§ 1915 (e) (2) (B) (ii) for failure to state a claim. See 295 F.3d at
205-06. Where the owner of a claim is a minor or incompetent
person, therefore, unless that claimant is properly represented
by a guardian ad litem, next friend, or other suitable fiduciary,
and that representative either is, or is represented by, an
attorney, the court should not issue a ruling as to whether the
complaint states a claim on which relief may be granted.

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In the present case, the district court sua sponte
dismissed the claims asserted on behalf of Travieso on the ground
that the complaint failed to state a claim on which relief may be
granted, without determining whether Berrios was a proper guardian
ad litem and without Travieso's having the benefit of counsel.
The judgment thus entered would -- even if the pertinent allegations
could be amended to state a viable claim -- bar Travieso from
asserting such claims should he ever obtain proper, counseled,
representation.

Accordingly, we grant Berrios's motion for in forma
pauperis status for the purpose of vacating the judgment of the
district court, and we remand for further proceedings that conform
to the bar against non-attorneys' representation of other
entities in the federal courts. Berrios's remaining motions are
denied as moot.

On remand, the district court should first determine
whether Berrios is a suitable guardian ad litem for Travieso. If
it finds that he is not suitable and that it is not clear that a
substantial claim could not be asserted on Travieso's behalf, the
court should appoint another person to be Travieso's guardian ad
litem. If the court either finds that Berrios is a suitable
guardian or if it appoints a suitable guardian who is a
non-attorney, it should not dismiss the action without affording
such guardian the opportunity to retain counsel or to seek
representation from a pro bono attorney or agency. If the
guardian secures an attorney or is an attorney, the court should

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not dismiss the complaint for failure to state a claim without
giving counsel an opportunity to file an amended complaint. If
the guardian is not an attorney and does not obtain counsel, and
if it is not clear to the court whether a substantial claim might
be asserted on Travieso's behalf, the court should decide whether
to appoint counsel, taking into "consider [ation] the fact that,
without appointment of counsel, the case will not go forward at
all," Wenger, 146 F.3d at 125. If counsel is not secured or
appointed, the court may dismiss the complaint, but without
prejudice.

If the court determines that Berrios is not a suitable
guardian ad litem, and if the court views it as clear that no
substantial claim could be asserted on behalf of Travieso, it may
dismiss the complaint, but without prejudice.

The judgment is vacated and the matter is remanded for
proceedings consistent with the foregoing.

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