FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 28, 2007

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-10217

Non-Argument Calendar

________________________

D. C. Docket No. 06-02270-CV-T-26-MAP

HENRY FRANCIS, Next of friend, Jacqueline Dennis, 

Petitioner-Appellant, 

versus 

WARDEN, FCC COLEMAN - USP, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Middle District of Florida

_________________________

 (August 28, 2007)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

Henry Francis, proceeding pro se, appeals the district court’s denial of his
Francis also argues that the district court abused its discretion by dismissing his motion 1

for leave to proceed on appeal in forma pauperis (“IFP”). However, the district court’s order

denying Francis’s motion for leave to proceed on appeal IFP is a non-appealable final order, and

the proper avenue for “review”of such an order is by motion to this Court. See Fed.R.App.P.

24(a)(5) and Advisory Comm. Note (1967) ¶3 (stating that the rule concerning IFP “establishes a

subsequent motion in the court of appeals, rather than an appeal . . . as the proper procedure for

calling into question the correctness of the action of the district court”). Francis filed a motion

for leave to procced on appeal IFP with this Court, which was granted. Therefore, we need not

address Francis’s argument that the district court erred by denying his IFP motion.

2

Fed.R.Civ.P. 60(b) motion, which requested relief from the § 2241 petition that

Jacqueline Dennis brought on his behalf without his permission.1

We review the district court’s order on a Rule 60(b) motion for an abuse of

discretion. Willard v. Fairfield S. Co., Inc., 472 F.3d 817, 821 (11th Cir. 2006). 

“A district court abuses its discretion if it applies an incorrect legal standard,

follows improper procedures in making the determination, or makes findings of

fact that are clearly erroneous. A district court may also abuse its discretion by

applying the law in an unreasonable or incorrect manner.” Klay v. Humana, Inc.,

382 F.3d 1241, 1251 (11th Cir. 2004). We can also find an abuse of discretion

where the district court had made a clear error of judgment. Amlong & Amlong,

P.A. v, Denny’s, Inc., 457 F.3d 1180, 1188 (11th Cir. 2006). In relevant part, Rule

60(b) provides that, 

[o]n motion and upon such terms as are just, the court may relieve a

party or a party’s legal representative from a final judgment, order, or

proceeding for the following reasons: (1) mistake, inadvertence,

surprise, or excusable neglect . . . (4) the judgment is void . . . or (6)

any other reason justifying relief from the operation of the judgment.
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We have held that the successive writ rule bars claims raised in a § 2241 petition

that have been litigated and adjudicated in a petitioner’s prior habeas proceedings. 

Glumb v. Honsted, 891 F.2d 872, 873 (11th Cir. 1990); see 28 U.S.C. § 2244(a).

Under 28 U.S.C. § 2242, 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.” In habeas corpus cases, we permit a “next friend” to

proceed on behalf of a prisoner who is unable to seek relief himself. Ford v.

Haley, 195 F.3d 603, 624 (11th Cir. 1999). The Supreme Court has stated that

decisions applying the habeas corpus statute have adhered to at least the following

prerequisites for such “next friend” standing:

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, and it has

been further suggested that a “next friend” must have some significant

relationship with the real party in interest.

Whitmore v. Arkansas, 495 U.S. 149, 163, 110 S.Ct. 1717, 1727, 109 L.Ed.2d 135

(1990) (citations omitted) (addressing an individual’s “next friend” status in the

context of an appeal); see Lonchar v. Zant, 978 F.2d 637, 641 (11th Cir. 1992)

(holding that the prerequisites discussed in Whitmore apply where a “next friend”

seeks a writ of habeas corpus on someone’s behalf). Absent “next friend” status,
4

an individual lacks Article III standing to file a petition on another’s behalf, thus

stripping the district court of jurisdiction to consider the petition. Whitmore, 495

U.S. at 155-56, 163, 110 S.Ct. at 1722-23, 1727.

We have held that a district court properly refused to file a habeas

application that was filed by a “next friend” where the application did not establish

any reason or explanation of why it was necessary to resort to the “next friend”

device, and no such reason or explanation appeared in the record. Weber v. Garza,

570 F.2d 511, 514 (5th Cir. 1978). Furthermore, “[t]he burden is on the ‘next

friend’ clearly to establish the propriety of his status and thereby justify the

jurisdiction of the court.” Whitmore, 495 U.S. at 164, 110 S.Ct. at 1727. “Pro se

pleadings are held to a less stringent standard than pleadings drafted by attorneys

and will, therefore, be liberally construed.” Tannenbaum v. United States, 148

F.3d 1262, 1263 (11th Cir. 1998).

Contrary to the government’s contention that Dennis could not represent

Francis because she is not an attorney, she could have had standing as a “next

friend.” See Whitmore, 495 U.S. at 163, 110 S.Ct. at 1727. Furthermore, while

the government claims that Francis was not prejudiced by any error, the dismissal

of the present § 2241 petition brought in Francis’s name could bar him from

reraising any of the claims in the petition. See Glumb, 891 F.2d at 873; see also 28
5

U.S.C. § 2244(a). However, without “next friend” status, Dennis lacked standing

under Article III to file the § 2241 petition, thus stripping the district court of

jurisdiction over the petition. Whitmore, 495 U.S. at 155-56, 163, 110 S.Ct. at

1722-23, 1727; Weber, 572 F.2d at 514. 

Here, Dennis did not satisfy her burden of establishing that she was entitled

to “next friend” status. Whitmore, 495 U.S. at 164, 110 S.Ct. at 1727. The § 2241

petition did not explain why it was necessary for Dennis to submit the petition as a

“next friend,” as it only stated that Dennis was Francis’s husband and that he was

unable to initiate the petition from prison. The petition provided no reasons in

support of this blanket assertion, and there is no reason to think that Francis’s

incarceration alone would prevent him from filing a § 2241 petition on his own

behalf. Therefore, because the § 2241 petition does not explain Francis’s alleged

inability to prosecute the action on his own behalf, Dennis lacked standing to file

the petition, and the district court should have refused to file it. See id.; Weber,

570 F.2d at 514. Accordingly, the district court abused its discretion in denying

Francis’s Rule 60(b) motion, which requested that he not be held accountable for

the § 2241 petition that he neither filed nor authorized to be filed on his behalf,

because Dennis did not have standing to file the § 2241 petition. See Amlong &

Amlong, 457 F.3d at 1188; Klay, 382 F.3d at 1251. We vacate the district court’s
6

order denying Francis’s Rule 60(b) motion and remand the case for the district

court to grant the Rule 60(b) motion and insure that Francis is not prejudiced by

the dismissal of the improperly filed § 2241 petition.

VACATED AND REMANDED.