Krain v. Smallwood

BOOCHEVER, Circuit Judge: Lawrence Krain appeals the dismissal with prejudice of eight lawsuits he filed, in pro per, in the district court. After determining that a substantial question existed regarding Krain’s competency to proceed pro se, a magistrate ordered Krain to produce information needed to determine whether Krain was competent. In Krain v. Smallwood, et al. the magistrate ordered Krain to comply or show cause why the case should not be dismissed. Krain’s appeal of this order to the district court was denied. In Krain v. Sundín, et al., on appeal to the district court the order was affirmed in part. Krain was warned that failure to comply might result in the dismissal of the seven cases captioned. Krain failed to comply with the orders. The magistrate recommended that Smallwood be dismissed. After conducting a de novo review of those portions of the recommendation to which objections had been filed the district court adopted the recommendation and dismissed the case with prejudice. The district court also dismissed the Sundín cases with prejudice. Rule 17(c) of the Federal Rules of Civil Procedure provides that “[t]he court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.” If an infant or incompetent person is unrepresented, the court should not enter a judgment which operates as a judgment on the merits without complying with Rule 17(c). See Roberts v. Ohio Casualty Ins. Co., 256 F.2d 35, 39 (5th Cir.1958). The preferred procedure when a substantial question exists regarding the mental competence of a party proceeding pro se is for the district court to conduct a hearing to determine whether or not the party is competent, so that a representative may be appointed if needed. See Cyntje v. Government of the Virgin Islands, 95 F.R.D. 430 (D.V.I.1982). When the party refuses to cooperate, however, the court may dismiss the case without prejudice. See Bodnar v. Bodnar, 441 F.2d 1103,1104 (5th Cir.1971) (affirming a dismissal without prejudice where the plaintiff refused to submit to a mental examination to determine whether she was competent). Or the court may find that the incompetent person’s interests would be adequately protected by the appointment of a lawyer. See Westcott v. United States Fidelity & Guaranty Co., 158 F.2d 20, 22 (4th Cir.1946) (affirming judgment against minor who was represented by an attorney but not a guardian ad litem). We hold that when a substantial question exists regarding the competence of an unrepresented party the court may not dismiss with prejudice for failure to comply with an order of the court. We reverse the dismissals with prejudice and remand to the district court. The district court has discretion to dismiss the cases without prejudice, appoint a lawyer to represent Krain, or proceed with a competency determination. REVERSED AND REMANDED.