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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12570
____________________
GRANT SUNNY IRIELE,
as the personal representative of the estate of
Rosemary Ewere Iriele (a.k.a. Rosemary Ofume),
Plaintiff-Appellant,
versus
RICHARD CARROLL GRIFFIN,
PATRICIA V. BRADLEY,
ELIZABETH A. KNOPP,
CHRISTOPHER P. POTTER,
JASON S. ETHERIDGE, et al.,
Defendants-Appellees.
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2 Opinion of the Court 21-12570
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 7:20-cv-00383-LSC
____________________
Before BRANCH, BRASHER, and ED CARNES, Circuit Judges.
BRANCH, Circuit Judge:
Grant Iriele, one day before the expiration of the statutory
limitations period, initiated suit pro se against federal prison
officials on behalf of his deceased mother’s estate. Iriele, who had
unsuccessfully attempted to retain counsel before filing suit, did
not know that he could not represent his mother’s estate pro se and
needed, instead, to secure legal representation. Several months
later, but before responsive pleadings were filed by Defendants, he
retained counsel who entered an appearance and filed an amended
complaint on behalf of the estate reasserting the original cause of
action, asserting additional causes of action, and adding the United
States as a defendant. Iriele assumed that retaining counsel and
filing an amended complaint corrected his original mistake. The
district court disagreed and dismissed the suit. In the district
court’s view, the original complaint, deficient for lack of proper
legal representation, was a nullity and could not be cured by an
amended complaint filed by counsel—there was simply nothing to
amend.
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Iriele urges us to reverse the district court’s dismissal
because his amended complaint was proper. After careful review
of the record and the briefs, and with the benefit of oral argument,
we agree with Iriele and reverse.
I. Background
Iriele initiated this suit on March 20, 2020, on behalf of the
estate (“the Estate”) of his deceased mother, Rosemary Ewere
Iriele, alleging that she died while incarcerated because of
deliberate indifference to her serious medical needs on the part of
federal prison officials. Iriele’s initial complaint alleged Eighth
Amendment violations against the individual officials pursuant to
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).
Rosemary died on March 21, 2018, meaning that, pursuant
to the two-year statute of limitations for Bivens claims brought in
Alabama, the Estate had to file its complaint by March 21, 2020. 1
Prior to that date, Iriele was able to secure legal counsel to
represent the Estate, but counsel disengaged further representation
1
“[A] Bivens action is governed by the same statute of limitations as would a
§ 1983 action in th[e respective] court.” Kelly v. Serna, 87 F.3d 1235, 1238 (11th
Cir. 1996). Section 1983 claims, as tort actions, use the same statute of
limitations of the state where the claim is brought. Powell v. Thomas, 643
F.3d 1300, 1303 (11th Cir. 2011). Alabama law imposes a two-year statute of
limitations for tort claims, Ala. Code § 6-2-38(l), and we have construed this
limitation to apply to § 1983 claims brought in Alabama, Jones v. Preuit &
Mauldin, 876 F.2d 1480, 1483 (11th Cir. 1989).
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4 Opinion of the Court 21-12570
in November 2019. Iriele then sought new counsel. He initially
believed he had been successful in obtaining new counsel, but in
February 2020, Iriele received a letter from the prospective counsel
declining to represent the Estate. For the next three weeks, Iriele
contacted multiple law firms seeking representation to no avail.
Faced with a decision between forfeiting the claims of the Estate or
proceeding pro se, Iriele opted for self-representation and filed the
complaint on March 20, 2020—one day before the expiration of the
limitations period.
During this time, Iriele also began the administrative process
for asserting claims in federal court pursuant to the Federal Tort
Claims Act 2 (“FTCA”) by mailing a notice of claim to the Federal
Bureau of Prisons (“BOP”) on March 17, 2020. 3 In response, he
received a denial of claim letter from the BOP dated May 19, 2020,
meaning that the statute of limitations period for any FTCA claims
brought by the Estate would expire on November 19, 2020, six
2
The FTCA requires that a claimant present a tort claim in writing to the
appropriate agency “within two years after such claim accrues.” 28 U.S.C.
§ 2401(b). Further, once the agency issues its final decision, the claimant must
initiate suit within six months of receipt of the decision. Id.; see also Phillips
v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001).
3
The BOP received the notice of claim via mail on March 18, 2020. Iriele also
e-mailed the notice of claim to the BOP on March 18, 2020, followed up the
next day via e-mail to confirm receipt, and faxed the notice of claim to the BOP
on March 20, 2020. The government does not dispute that it received notice
of this claim within the two-year period after it accrued.
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months after receipt of the BOP’s decision. 28 U.S.C. § 2401(b);
Phillips v. United States, 260 F.3d 1316, 1317 (11th Cir. 2001).
On October 27, 2020, the district court issued an order sua
sponte requiring Iriele to inform the court:
(1) whether Decedent [Rosemary Ewere Iriele] had
any children besides [Iriele];
(2) if Decedent died testate, whether anyone besides
[Iriele] was a beneficiary of Decedent’s will; and
(3) if Decedent died intestate, whether anyone
besides [Iriele] could inherit from Decedent through
the laws of intestacy.
Further, [Iriele] must inform the Court, in writing, if
any creditors have a claim against Decedent’s estate.
Iriele had 14 days to comply with the district court’s order.
Iriele was eventually able to secure counsel for the Estate
and on November 10, 2020, counsel entered an appearance as
counsel for the Estate, and filed a response to the district court’s
order. Counsel responded that “Decedent ha[d] three (3) children,
including [Iriele]”; “Decedent died intestate”; besides Iriele,
“Decedent’s children and surviving spouse” would inherit through
the laws of intestacy; and Iriele was “only aware of” a single
creditor with a claim against the Estate—“JP Morgan Chase
(mortgage on residence).” No Defendant had filed a responsive
pleading or any other motion at this time.
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On November 19, 2020, counsel for the Estate filed an
amended complaint pursuant to Federal Rule of Civil Procedure
15(a), which reasserted the Bivens claim from the initial complaint
and asserted new claims, including additional Bivens claims and
FTCA claims. The Estate also added the United States of America
as a defendant. At the time of filing the amended complaint, the
Estate’s Bivens claims were outside the statute of limitations but
the FTCA claims (asserted for the first time in the amended
complaint) were timely. 28 U.S.C. § 2401(b); Phillips, 260 F.3d at
1317.
The district court conducted a telephonic conference on
January 4, 2021, during which time it raised sua sponte the question
of whether the case should be dismissed because Iriele, who is not
a lawyer, initiated the suit pro se on behalf of the Estate. The
district court ordered the parties to submit briefing on “whether
Mr. Iriele could (1) legally represent the [E]state on a pro se basis
and, (2) if not, whether th[e] matter should be dismissed.”
Counsel for the Estate responded that Iriele initiated suit pro
se on behalf of the Estate because of the impending statute of
limitations deadline and, as a result, made an “unknowing[] and . . .
honest mistake” by believing that he could file the complaint pro
se. However, to the extent the complaint was a nullity, he argued
that the doctrine of equitable tolling should apply, such that the
amended complaint filed by counsel on behalf of the Estate related
back to the filing of the initial complaint because the defect had
been cured by securing legal representation. He also pointed out
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that the FTCA claims asserted in the amended complaint were
timely.
The government countered that, while 28 U.S.C. § 1654 4
allows individuals to represent themselves in federal court, a non-
binding, unpublished decision from our Court, Alabama state law,
and the district court’s local rules did not allow a non-attorney to
represent an estate in court. Therefore, according to the
government, any filing made by the non-attorney on behalf of the
Estate was null and void, unable to be cured by any amendment.
In other words, because the complaint was void ab initio, “there
was nothing to amend in the first place.” The government also
argued that the district court should not apply equitable tolling
because Iriele’s pro se status, ignorance of the law, or inability to
find or pay for an attorney were not extraordinary circumstances
sufficient to justify relation back of the amended complaint.
The district court entered an order dismissing the case
without prejudice on June 28, 2021. It acknowledged that there is
no binding precedent from this Court addressing the precise
question of “whether an estate’s executor brings his ‘own case’ (or
the case of another)” under 28 U.S.C. § 1654 “when he files a pro
se lawsuit on an estate’s behalf.” However, it found persuasive
decisions from the Second, Third, Fifth, Sixth, and Eighth Circuits,
4
“In all courts of the United States the parties may plead and conduct their
own cases personally or by counsel as, by the rules of such courts, respectively,
are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654.
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which each held that “[a] pro se executor suing on an estate’s behalf
brings his ‘own case’ only when (1) he is the estate’s sole
beneficiary and (2) the estate has no outstanding creditors.” See,
e.g., Pridgen v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997); Murray
ex rel. Purnell v. City of Phila., 901 F.3d 169, 171 (3d Cir. 2018);
Rodgers v. Lancaster Police & Fire Dep’t, 819 F.3d 205, 211 (5th
Cir. 2016); Bass v. Leatherwood, 788 F.3d 228, 230 (6th Cir. 2015);
Jones ex rel. Jones v. Corr. Med. Servs., Inc., 401 F.3d 950, 952 (8th
Cir. 2005).
Applying that rule, the district court determined that Iriele
“had no authority to file this lawsuit because the [E]state has three
other beneficiaries and at least one outstanding creditor” and the
filing of the amended complaint could not cure the deficiency as it
“only amend[ed] a nullified document.”5 Accordingly, the district
court dismissed the action without prejudice. Iriele timely
appealed.
II. Discussion
Iriele argues that the district court erred in dismissing the
complaint6 because there is no binding precedent addressing
whether a pro se party can represent an estate and, even if the
5
The district court also stated that it “ma[de] no ruling as to whether the
[E]state’s claims are time barred and, if so, whether the doctrine of equitable
tolling applies to those otherwise-untimely claims.”
6
We review a district court’s order to dismiss a case de novo. Coventry First,
LLC v. McCarty, 605 F.3d 865, 868–69 (11th Cir. 2010).
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complaint was defective, any defect was cured by the appearance
of counsel and by the filing of the amended complaint.7
A. Can an executor of an estate represent the estate pro se in
federal court?
We start by answering the question posed by the district
court, which up until now we have left unanswered: can an
executor of an estate file a lawsuit in federal court pro se on behalf
of the estate where there are additional beneficiaries of the estate,
other than the executor, and/or where the estate has outstanding
creditors? 28 U.S.C. § 1654 provides: “In all courts of the United
States the parties may plead and conduct their own cases personally
or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.” (emphasis
added). Equally divided sitting en banc, we previously offered no
opinion on this issue. Reshard v. Britt, 839 F.2d 1499, 1499 (11th
Cir. 1988) (en banc). Faced with the issue again today, we hold
that, under the terms of § 1654, an executor may not represent an
estate pro se where there are additional beneficiaries, other than
the executor, and/or where the estate has outstanding creditors.
In such a situation as exists here, an executor of such an estate does
not bring his “own case” and thus the estate must be represented
by counsel. 28 U.S.C. § 1654.
7
Iriele also argues that equitable tolling should apply to his claims. We need
not reach this argument, as explained herein.
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We join several of our sister circuits that have reached the
same conclusion, prohibiting executors of estates from
representing the estate in federal court pro se where the estate has
additional beneficiaries and/or creditors. See Pridgen, 113 F.3d at
393 (creditors of the estate); Shepherd v. Wellman, 313 F.3d 963,
970 (6th Cir. 2002) (additional beneficiaries of the estate); Malone
v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) (per curiam) (additional
beneficiaries of the estate); Murray, 901 F.3d at 171 (holding that a
non-beneficiary administrator of an estate cannot represent the
estate pro se). See also Guest v. Hansen, 603 F.3d 15, 21 (2d Cir.
2010) (holding that “the administrator and sole beneficiary of an
estate with no creditors may appear pro se on behalf of the estate”);
Bass, 788 F.3d at 230 (holding that a sole beneficiary of an estate
without any creditors may represent the estate pro se); Rodgers,
819 F.3d at 211 (holding that “[a] person with capacity under state
law to represent an estate in a survival action may proceed pro se
if that person is the only beneficiary and the estate has no
creditors”). 8
We further hold that when a pro se plaintiff improperly
seeks to represent an estate with additional beneficiaries and/or
creditors, the district court may not simply dismiss the case
without providing the plaintiff an opportunity to cure the
8
We do not reach the question of whether an executor of an estate without
any creditors or additional beneficiaries can represent the estate pro se in
federal court under § 1654, as that question is not before us.
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deficiency. After all, we routinely permit pro se plaintiffs to do so
in other contexts. For instance, in Palazzo v. Gulf Oil Corp., we
applied the “well-established” rule “that a corporation is an
artificial entity that can act only through agents, cannot appear pro
se, and must be represented by counsel.” 764 F.2d 1381, 1385 (11th
Cir. 1985). In that case, the district court dismissed the corporate
claims for lack of proper representation where a major stockholder
of the corporation sought to represent the corporation after its
original counsel withdrew. Id. at 1384–86. But the district court
dismissed those claims only after it had provided the corporation
multiple opportunities to obtain substitute counsel. See id. at 1386
(“The record is clear that the court below was more than
accommodating in urging proper representation of the corporate
claims.”). The same principle should apply in the context of
estates. The district court should provide the pro se plaintiff
attempting to represent an estate with other beneficiaries and/or
creditors an opportunity to obtain counsel within a reasonable
amount of time before dismissing the case outright. Accordingly,
Iriele properly hired counsel who promptly filed an amended
complaint.
The government, however, argues that the amended
complaint is not proper because the original complaint was a
nullity, meaning that it cannot be amended. It relies exclusively
upon Jones ex rel. Jones v. Correctional Medical Services, Inc., in
which the Eighth Circuit affirmed the district court’s dismissal of a
case filed pro se by the administrator of an estate. 401 F.3d at 951.
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The Eighth Circuit, while acknowledging that it was not bound by
state law, explicitly adopted the reasoning of the Arkansas Supreme
Court and held that “the defect [could not] be amended” because
“the original complaint, as a nullity never existed.” Id. at 952
(quoting Davenport v. Lee, 72 S.W.3d 85, 94 (Ark. 2002)).
However, the Eighth Circuit also acknowledged in a parenthetical
that “most district courts” often warn a litigant of the need to retain
counsel in similar cases before dismissing. Id. (citing Memon v.
Allied Domecq QSR, 385 F.3d 871, 874 (5th Cir. 2004)). 9
First, we note our disagreement with the Eighth Circuit’s
consideration and application of state law. Whether or not a state
in our Circuit applies a “nullity rule” has no bearing on our
interpretation of a federal statute that defines the limits of pro se
representation in federal court. Moreover, even when applying the
“nullity rule,” the Eighth Circuit still acknowledged that courts in
other jurisdictions often provide pro se litigants another bite at the
9
In Memon, the Fifth Circuit reversed the district court’s dismissal for lack of
proper representation where a corporation was represented by a non-
attorney. 385 F.3d at 874–75. The Fifth Circuit observed that “[i]n virtually
every case in which a district court dismissed the claims (or struck the
pleadings) of a corporation that appeared without counsel, the court expressly
warned the corporation that it must retain counsel or formally ordered it to
do so before dismissing the case,” or dismissed the case without prejudice
“allowing the corporation to re-file after acquiring a lawyer.” Id. at 874
(collecting cases). The Fifth Circuit held that it was error for the district court
to have “never admonished” the corporation that it needed to retain counsel
before dismissing the case with prejudice. Id. at 874–75.
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apple where an initial mistake was made at the time of filing. Id.
Accordingly, we do not follow the lead of Jones and expressly
decline to adopt the “nullity rule” in this circumstance. 10
Having determined that Iriele’s initial pro se complaint was
not a nullity, we now examine (1) whether the Estate was
permitted to amend the complaint after obtaining counsel, and (2)
whether, if any claims fall outside the relevant statute of
limitations, the amended complaint related back to the date of
filing of the initial complaint. We address these issues in order.
B. Amendment of pleadings as a matter of course under
Federal Rule of Civil Procedure 15(a)(1)
To determine whether the Estate was permitted to amend
its initial complaint, we turn to Federal Rule of Civil Procedure 15,
which allows a party, before trial, to amend its pleading once as a
matter of course within 21 days after serving it, or, if the pleading
is one to which a responsive pleading is required, 21 days after
service of a responsive pleading. Fed. R. Civ. P. 15(a)(1). “If the
case has more than one defendant, and not all have filed responsive
pleadings, the plaintiff may amend the complaint as a matter of
10
The government also relies upon cases in which we have held that a notice
of appeal filed by a pro se litigant on behalf of another is ineffective. See
Martin-Trigona v. Shaw, 986 F.2d 1384, 1388 n.1 (11th Cir. 1993); Theriault v.
Silber, 579 F.2d 302, 302 n.1 (5th Cir. 1978). These cases relied upon Federal
Rule of Civil Procedure 11, rather than 28 U.S.C. § 1654, and do not speak to
any “nullity rule” as the government champions in this case. We therefore do
not find them persuasive.
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course with regard to those defendants that have yet to answer.”
Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1291
(11th Cir. 2007). If the requirements of Rule 15(a)(1) are not met,
a party may amend its pleading only with consent from the
opposing party or leave of court. Fed. R. Civ. P. 15(a)(2).
Here, Iriele filed his original pro se complaint on March 20,
2020. Counsel for the Estate filed its first and only amended
complaint on November 19, 2020. At the time of filing of the
amendment, no Defendant had filed any responsive pleading—a
fact which the government does not contest. Thus, under Rule
15(a)(1), the Estate was entitled to file its amended complaint
without consent from Defendants or leave from the district court.
C. Relation back of amendments under Federal Rule of Civil
Procedure 15(c)
The next question is whether, if any claims in the amended
complaint fall outside the statute of limitations, the amendment
relates back to the date of filing of the original complaint pursuant
to Rule 15(c). The amended complaint reasserted the Estate’s
original Bivens cause of action but also added new claims for relief:
new Bivens claims for failure to train and supervise, failure to
discipline, and failure to protect under the Eighth Amendment
against the individual BOP officials; and FTCA claims for
negligence and wrongful death against the United States, which the
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Estate added as a new Defendant. 11 As we have stated, the FTCA
claims asserted in the amended complaint were timely when filed.
The statute of limitations for the Bivens claims, however, had
expired by the time counsel for the Estate filed the amended
complaint. Therefore, only the Bivens claims (both the original
Bivens claim and the additional Bivens claims asserted for the first
time in the amended complaint) must relate back such that they do
not fall outside the limitations period. We conclude that they do
relate back.
An amendment to a pleading can “relate[] back to the date
of the original pleading” under certain circumstances, including
where “the amendment asserts a claim or defense that arose out of
the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading[.]” Fed. R. Civ. P. 15(c)(1)(A)–
(B).
When new claims asserted in an amended complaint
“‘involve[ ] separate and distinct conduct,’ such that the plaintiff
would have to prove ‘completely different facts’ than required to
11
Under Rule 15(c)(2), when an amendment adds the United States (or an
officer or agency thereof) as a defendant, “the notice requirements . . . are
satisfied if . . . process was delivered or mailed to the United States attorney or
the United States attorney’s designee, to the Attorney General of the United
States, or to the officer or agency.” Fed. R. Civ. P. 15(c)(2). There is no dispute
that the United States, the United States attorney, and the Attorney General
of the United States were served with process effectively in this case on
November 20, 2020, such that the amendment complied with Rule 15(c)(1)(C).
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16 Opinion of the Court 21-12570
recover on the claims in the original complaint, the new claims do
not relate back.” Caron v. NCL (Bahamas), Ltd., 910 F.3d 1359,
1368 (11th Cir. 2018) (quoting Moore v. Baker, 989 F.2d 1129, 1132
(11th Cir. 1993)) (alterations in original). On the other hand, where
the claims brought in an amended complaint are “closely related”
to the claims asserted in an original complaint, we have held that
the amendment related back to the filing date of the original
complaint. See Arce v. Garcia, 434 F.3d 1254, 1264 n.24 (11th Cir.
2006).
The government does not allege that the Bivens claims
asserted in the amended complaint do not arise from “the conduct,
transaction, or occurrence set out—or attempted to be set out—in
the original pleading[.]” Fed. R. Civ. P. 15(c)(1)(B). Indeed, we
conclude that those claims do arise from the same conduct,
transaction, or occurrence set out in the original complaint because
each of the Bivens claims are based upon the BOP officials’ alleged
inaction that the Estate claims was the cause of Iriele’s mother’s
death, just as Iriele alleged in the original complaint. It is clear that
the amended complaint is based upon conduct and occurrences
that are not only “closely related,” but virtually identical to the
conduct and occurrences set out in the original complaint. For this
reason, the Bivens claims asserted in the amended complaint relate
back to the filing of the initial pro se complaint on March 20, 2020,
and are thus timely.
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III. Conclusion
While Iriele was not legally authorized under 28 U.S.C.
§ 1654 to represent the Estate pro se, the district court erred in
dismissing the case without first providing Iriele an opportunity to
rectify his mistake by obtaining counsel. Once properly
represented, the Estate was entitled to file the amended complaint
as a matter of course pursuant to Rule 15(a)(1). Further, the FTCA
claims asserted therein were timely and the Bivens claims relate
back to the date of filing of the original complaint. Therefore, the
Estate’s claims can proceed. 12
REVERSED AND REMANDED with instructions to set
aside the dismissal and to conduct further proceedings consistent
with this opinion.
12
The Estate argues on appeal that, if his claims do not relate back, we should
apply equitable tolling principles. Because we conclude that the Estate’s
FTCA claims are timely and the Bivens claims relate back, we need not reach
the issue of equitable tolling.
Grant Sunny Iriele v. Richard Carroll Griffin
Combined Opinion