Pullen v. Fischer
1:12-cv-02129
D. Colo.Aug 15, 2012Background
- Margaret Ilene Pullen filed a Complaint and a § 1915 motion as agent for Evergreen Applied Research and People of the Republic of Colorado.
- The court found the filings deficient under D.C. Colo. LCivR 8.1 and determined only Pullen may proceed, not the two entity plaintiffs.
- The court cited Tal v. Hogan to state that an entity must be represented by an attorney in federal court and cannot appear pro se through a non-attorney officer.
- The court determined Pullen’s claims appear to attack her conviction, thus suggesting the action should be pursued as habeas corpus.
- Pullen was directed to file an Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 and cure listed deficiencies using court-approved forms within 30 days.
- The two entity plaintiffs were dismissed; only Pullen may proceed, and failure to cure may result in dismissal without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May entity plaintiffs appear pro se? | Pullen argues on behalf of entities. | Entities cannot appear without counsel; only Pullen may proceed. | Entity plaintiffs dismissed; only Pullen may proceed. |
| Should the action proceed as habeas corpus? | Claims target Pullen’s conviction and should be habeas. | Court views the essence as habeas and requires §2254 proceedings. | Proceed as habeas corpus under 28 U.S.C. § 2254. |
| Must the plaintiff cure deficiencies using proper forms within a deadline? | Not specified in the record. | Deficiencies must be cured on proper forms; otherwise dismissal. | Plaintiff must cure deficiencies within 30 days using court-approved forms. |
| What are the consequences for failing to cure the deficiencies? | No explicit consequence stated beyond cure requirement. | Failure to cure results in dismissal without prejudice. | If not cured, the complaint will be dismissed without prejudice. |
Key Cases Cited
- Tal v. Hogan, 453 F.3d 1244 (10th Cir. 2006) (entity must be represented by an attorney to appear in federal court)
- Harrison v. Wahatoyas, LLC, 253 F.3d 552 (10th Cir. 2001) (entity cannot appear through a non-attorney officer pro se)
- Preiser v. Rodriguez, 411 U.S. 475 (Supreme Court 1973) (habeas corpus protects against unlawful custody)