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Eighth Circuit: Administrator of Prisoner's Estate May Not Sue Pro Se

On March 29, 2005, the Eighth Circuit Court of Appeals held that the administrator of the estate of a prisoner who died of cancer while incarcerated in the Arkansas Department of Corrections may not file a suit for medical malpractice on behalf of the estate without the representation of an attorney.

Adrian Jones, administrator of the estate of Dennis Jones, filed a lawsuit in federal district court under 42 U.S.C. § 1983 and state tort law. After the statute of limitations expired with respect to a state medical malpractice claim, the court appointed an attorney to represent the estate. The defendants moved to dismiss because the complaint had been filed by a non-attorney. The district court dismissed the suit, applying Arkansas law that prohibited an administrator of an estate from practicing law on issues of the trusteeship on the theory that he is representing himself. Jones appealed.

The Eighth Circuit did not uphold the district court's application of Arkansas law instead of federal law. However, applying 28 U.S.C. § 1654, the appellate court held that a non-lawyer could not appear for an estate if there were any other beneficiaries or creditors because he would then be representing the personal interests of people other than himself. Because Adrian Jones was not the only beneficiary or creditor of Dennis Jones, his filing of the lawsuit was an improper practice of law.

The Eighth Circuit also refused to allow the complaint to be amended. It noted that such an amended complaint could not relate back to the original complaint which was improperly filed by a non-lawyer and therefore a nullity. The judgment of the district court was upheld. See: Jones ex rel Jones v. Correctional Medical Services, Inc., 401 F.3d 950 (8th Cir. 2005).

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Related legal case

Jones ex rel Jones v. Correctional Medical Services, Inc.

Jones v. Correctional Medical Services, Inc., 401 F.3d 950 (8th Cir. 03/29/2005)


[2] No. 04-1985

[3] 401 F.3d 950

[4] March 29, 2005


[6] Appeal from the United States District Court for the Eastern District of Arkansas.

[7] The opinion of the court was delivered by: Benton, Circuit Judge

[8] Submitted: February 18, 2005

[9] Before WOLLMAN, HANSEN, and BENTON, Circuit Judges.

[10] As administrator of the estate of Dennis Wade Jones, Adrian Devon Jones ? who is not an attorney ? sued Correctional Medical Services, Inc. ("CMS") and Duong Ngoc Ly, M.D. The district court*fn1 dismissed the lawsuit, because Adrian Jones undertook the unauthorized practice of law in filing the suit. Jurisdiction being proper under 28 U.S.C. § 1291, this court affirms.

[11] Dennis Jones died from cancer while incarcerated in the Arkansas Department of Corrections. Adrian Jones sued invoking 42 U.S.C. § 1983 and several state causes of action, including medical malpractice. After the statute of limitations ran on the medical malpractice claim, the court appointed counsel to represent the estate. CMS and Ny moved to dismiss, because the complaint was filed by a non-attorney on behalf of an estate.

[12] The district court dismissed, applying Arkansas law on survival actions, which prohibits"a person who is not a licensed attorney and who is acting as an administrator, executor or guardian [from] practic[ing] law in matters relating to his trusteeship on the theory that he is practicing for himself." Davenport v. Lee, 72 S.W.3d 85, 90 (Ark. 2002), quoting Arkansas Bar Ass'n v. Union Nat'l Bank of Little Rock, 273 S.W.2d 408, 410 (Ark. 1954).

[13] Adrian Jones asserts that the court improperly applied Arkansas rather than federal law.*fn2 This court reviews de novo the dismissal of a suit by the district court. Carter v. Arkansas, 392 F.3d 965, 968 (8th Cir. 2004 ). This court may affirm on any ground supported by the record. Ballinger v. Culotta, 322 F.3d 546, 548 (8th Cir. 2003) (citation omitted).

[14] 28 U.S.C. § 1654 protects a party's right to"plead and conduct their own cases personally or by counsel," but subjects the pleading and conduct to the rules of federal courts. See Carr Enters., Inc. v. United States, 698 F.2d 952, 953 (8th Cir. 1983). A federal court has"inherent power to oversee attorneys" who appear before it. McKenna v. Champion Int'l Corp., 747 F.2d 1211, 1215 (8th Cir. 1984), overrulled on other grounds by Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 167 n.1 (1989). See also C.E. Pope Equity Trust v. United States, 818 F.2d 696, 698 (9th Cir. 1987) (When deciding whether a non-lawyer could appear for a trust, the Ninth Circuit held that"Oregon practice would not control practice in the federal courts.").

[15] Other circuits interpret section 1654 as prohibiting a non-attorney administrator of an estate from proceeding pro se when there are other beneficiaries or creditors of the estate. See Pridgen v. Andresen, 113 F.3d 391, 393 (2nd Cir. 1997); Sheperd v. Wellman, 313 F.3d 963, 970 (6th Cir. 2002). In terms of 28 U.S.C. § 1654, such an administrator is not pleading and conducting his or her"own case.""[W]hen an estate has beneficiaries or creditors other than the administratrix or executrix, the action cannot be described as the litigant's own, because the personal interests of the estate, other survivors, and possible creditors will be affected by the outcome of the proceedings." Pridgen, 113 F.3d at 393 (internal quotations omitted).

[16] In this case, Adrian Jones is not the only beneficiary/creditor of Dennis Jones's estate. Thus, as a non-attorney, Adrian Jones may not engage in the practice of law on behalf of others. See Ackra Direct Mktg. Corp. v. Fingerhut Corp., 86 F.3d 852, 857 (8th Cir. 1996); Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994); United States v. Van Stelton, 988 F.2d 70, 70 (8th Cir. 1993).

[17] Jones argues that in the alternative to dismissal, he should be allowed to amend his complaint. Finding the complaint a nullity, the district court refused subsequent pleadings that might relate back to the original complaint, again following the Arkansas Supreme Court in Davenport:

[18] In light of our duty to ensure that parties are represented by people knowledgeable and trained in the law, we cannot say that the unauthorized practice of law simply results in an amendable defect. Where a party not licensed to practice law in this state attempts to represent the interests of others by submitting himself or herself to jurisdiction of a court, those actions such as the filing of pleadings, are rendered a nullity.... [B]ecause the original complaint, as a nullity never existed,... an amended complaint cannot relate back to something that never existed, nor can a nonexistent complaint be corrected.

[19] Davenport, 72 S.W.3d at 94.

[20] Although not bound by Arkansas law on the procedural question of amendability, this court adopts the reasoning in Davenport. Adrian Jones committed the unauthorized practice of law. Because"[p]rofessional competence and professional responsibility are the sine qua non of federal litigation and effective judicial response," the defect cannot be amended. C.E. Pope Equity Trust, 818 F.2d at 698 (affirming dismissal without prejudice where party improperly filed complaint pro se). See also Steele v. City of Bemidji, 257 F.3d 902, 905 (8th Cir. 2001) (affirming dismissal based, in part, upon non-lawyer's representation of corporation in lawsuit); Memon v. Allied Domecq QSR, 385 F.3d 871, 874 (5th Cir. 2004) (noting that most district courts warn the party of the need for counsel before dismissal, or dismiss without prejudice, allowing the party to re-file with counsel).

[21] The judgment of the district court is affirmed.


Opinion Footnotes


[22] *fn1 The Honorable William R. Wilson Jr., United States District Judge for the Eastern District of Arkansas.

[23] *fn2 At oral argument, Adrian Jones's counsel also asserted judicial estoppel against NMS and Ny. This court does not address this argument, because it may only review issues specifically raised and argued in appellant's brief. See White v. Moulder, 30 F.3d 80, 82 (8th Cir. 1994), cert. denied, 513 U.S. 1084 (1995).