(HC) Roberts v. St. Andre ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RYAN D ROBERTS, No. 2:23-cv-00227-EFB (HC) 12 Petitioner, 13 v. ORDER 14 ROB ST. ANDRE, 15 Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. He has paid the filing fee. However, the court cannot determine whether 19 petitioner may be entitled to the requested relief because he has not personally signed the petition. 20 See ECF No. 1 (signed instead by “Edmund Roberto,” who claims to be “father and attorney in 21 fact under durable power of attorney”). Apparently, Mr. Roberto misunderstands the authority 22 and lack of authority conferred by a durable power of attorney, which cannot authorize a non- 23 lawyer to represent the plaintiff in this action. Rule 11 of the Federal Rules of Civil Procedure 24 requires that “[e]very pleading, written motion, and other paper . . . be signed by at least one 25 attorney of record in the attorney’s name—or by a party personally if the party is unrepresented.” 26 Fed. R. Civ. P. 11(a). Even with a power of attorney, Edmund Roberto, who does not claim to be 27 a lawyer, has no authority to pursue legal claims on behalf of petitioner. See Johnson v. Bank 28 One N.A., 90 Fed. Appx. 956, 957 (7th Cir. 2004) (non-lawyer with power attorney may not sign 1 | pleadings for an unrepresented party because he is not a licensed attorney). Because petitioner is 2 || not represented by counsel, petitioner must personally sign the petition and other pleadings, 3 || motions and papers filed with the court. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. The Clerk of the Court shall strike the petition (ECF No. 1); 6 2. Within 30 days, petitioner shall file a signed petition using the form employed by this 7 court and stating all claims and prayers for relief; 8 3. Petitioner’s failure to comply with this order may result in this case being closed; and 9 4. The Clerk of the Court is directed to send petitioner the court’s form application for 10 writ of habeas corpus. 11 | Dated: February 15, 2023. □□ PDEA EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28