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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13459
Non-Argument Calendar
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D.C. Docket No. 9:17-cv-80631-KAM
ANTHONY O. WINT,
by and through his next friend,
ORAL WINT,
Petitioner-Appellant,
versus
STATE OF FLORIDA PALM BEACH SHERIFF,
STATE OF FLORIDA’S FIFTEENTH JUDICIAL CIRCUIT,
FLORIDA DEPARTMENT OF CORRECTIONS,
STATE OF FLORIDA OFFICE OF PUBLIC DEFENDER,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 21, 2021)
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Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Oral Wint, acting as “next friend” of his son, Anthony Wint, is trying to
challenge the constitutionality of his son’s Florida convictions for home invasion
robbery, aggravated battery, and false imprisonment. Proceeding pro se, he
attempted to initiate a new case in federal court by filing a “Request for Certificate
of Appealability.” 1 Generally a certificate of appealability is issued to authorize an
appeal of a final order in a habeas proceeding—and here no habeas petition had yet
been filed in the district court for Wint’s case. See
28 U.S.C. § 2253(c). The
“request” was referred to a magistrate judge. On May 22, 2017, the magistrate
judge ordered “the Petitioner” to refile the pleading and comply with the following
orders: (1) “expressly” notify the court whether he agreed to recharacterize his
pleading as a § 2254 habeas petition or whether he wanted to withdraw his
pleading; (2) if he did want to proceed with the habeas petition, file a petition
“clearly specifying the criminal convictions under attack and concisely stating his
issues and supporting facts on the form provided to him” in the order; and (3) if the
petition were refiled by a “next friend,” a stated basis for that next friend
designation, including providing a reason that the petitioner was unable to proceed
for himself.
Oral responded by filing a “Request to Reclassify Document from Habeas
Corpus to Next Friend Styled Request for Certificate of Appealability,” explaining
1
Though Appellant proceeded pro se before the district court, he is represented on appeal.
2
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that his initial filing was clearly intended to be a request for a certificate of
appealability and he was uncertain how his filing was docketed as a habeas corpus
petition. Oral’s new filing made no attempt to comply with the magistrate judge’s
order. The magistrate judge issued a report and recommendation, suggesting that
the district court dismiss the case without prejudice under Federal Rule of Civil
Procedure 41(b) because Oral failed to comply with a court order. The district
court adopted the report and recommendation and dismissed the case without
prejudice.
Oral, still claiming to proceed as Anthony’s next friend, appealed. 2 Because
we find that the district court did not abuse its discretion in dismissing this case
without prejudice, we will affirm.
I.
We review the dismissal of a complaint for failure to comply with a court
order for abuse of discretion. Equity Lifestyle Props., Inc. v. Fla. Mowing &
Landscape Serv., Inc.,
556 F.3d 1232, 1240 n.14 (11th Cir. 2009). In applying an
abuse of discretion standard, we will affirm unless the district court applied the
wrong legal standard or made a clear error of judgment. Maiz v. Virani,
253 F.3d
641, 662 (11th Cir. 2001).
II.
2
Before considering whether the dismissal was appropriate, we remanded to the district court for
the limited purpose of determining whether Oral should be permitted to proceed as next friend.
The district court determined Oral’s next friend status was appropriate for “pursuing a writ of
habeas corpus” before the district court.
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We begin by clearing up a fundamental misunderstanding in Appellant’s
initial brief. Appellant’s brief argues that the district court erred by “addressing
other issues after it determined that Oral Wint failed to demonstrate ‘next friend’
status” and that the district court’s later finding that Oral established next friend
standing has cured any defect with the district court’s jurisdiction. Both of these
arguments are premised on the notion that the district court dismissed because it
determined that Oral lacked standing to act as Anthony’s next friend. That,
though, was not the basis for the dismissal. Instead, the district court’s order was
clear: the case was “DISMISSED WITHOUT PREJUDICE for non-compliance
with the Court’s May 22, 2017 Order.” The district court could not, then, have
erred as Appellant suggests by addressing other issues after it determined Oral
lacked standing—it never made a jurisdictional determination in the first place.
Nor could the district court’s later determination that Oral has standing rectify his
non-compliance with the district court’s order.
Appellant tries to make an about-face in his reply brief by arguing for the
first time that the district court erred in “deciding other issues before resolving
Article III standing.” But that argument comes too late. Our court will not
“address an argument advanced by an appellant for the first time in a reply brief.”
Big Top Koolers, Inc. v. Circus-Man Snacks, Inc.,
528 F.3d 839, 844 (11th Cir.
2008). Since Appellant’s initial brief identifies no error in the order, we conclude
that the district court did not abuse its discretion dismissing under Rule 41(b).
That leaves us with one remaining argument on appeal. Appellant claims
that the district court erred by allowing Oral, a non-attorney, to represent Anthony
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before the district court. Though Oral may have been able to stand in Anthony’s
place as a plaintiff or petitioner, Appellant claims Oral could not proceed without
legal counsel.
This Circuit, though, has not firmly settled if and when a next friend may
proceed pro se. True, in certain types of litigation, we have held that a next friend
cannot represent the plaintiff is a pro se capacity. See, e.g., Devine v. Indian River
Cnty. Sch. Bd.,
121 F.3d 576, 581 (11th Cir. 1997) (“IDEA allows parents to sue in
their children’s stead, but does not authorize them to act as counsel in such a
lawsuit.”). But this proposition is less settled in other contexts, such as for habeas
petitions. For instance, we have previously recognized that when a petitioner is not
qualified as a “next friend,” he “may not participate in the unauthorized practice of
law by preparing legal papers, filing petitions and briefs, and generally acting as an
attorney in violation of state and federal provisions governing the unauthorized
practice of law.” Weber v. Garza,
570 F.2d 511, 514 (5th Cir. 1978).
But even assuming that Oral could not represent Anthony below, that would
be a basis for affirming the district court’s order, not reversing it. Harris v. United
Auto. Ins. Grp., Inc.,
579 F.3d 1227, 1232 (11th Cir. 2009) (noting that we “may
affirm the district court’s judgment on any ground that appears in the record,
whether or not that ground was relied upon or even considered by the court below”
(quotation omitted)). Ordinarily, if a party is represented by a non-attorney, a
court may dismiss without prejudice. Palazzo v. Gulf Oil Corp.,
764 F.2d 1381,
1386 (11th Cir. 1985) (affirming dismissal for lack of proper representation);
Memon v. Allied Domecq QSR,
385 F.3d 871, 874 (5th Cir. 2004) (noting that most
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district courts warn the party of the need for counsel before dismissal, or dismiss
without prejudice, allowing the party to refile with counsel). And that is precisely
what the district court did here. Appellant cites no authority from this Circuit to
suggest that the district court was required to do anything more in response to
Oral’s allegedly inappropriate representation.
Because the district court did not abuse its discretion in dismissing without
prejudice—either for failure to comply with a court order or for lack of proper
representation—the district court’s dismissal is AFFIRMED.
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