Opinion · Court of Appeals for the Ninth Circuit

Krain v. Smallwood

880 F.2d 1119

Type
Opinion
Court
Court of Appeals for the Ninth Circuit
Jurisdiction
Federal
Date
1989-07-26
Topic
bankruptcy

noting that when a pro se litigant refuses to cooperate in competency proceedings, the court may dismiss the case without prejudice | noting that when a pro se litigant refuses to cooperate in competency proceedings, the court may dismiss the case without prejudice | specifying appointment of an attorney as an alternative to holding competency proceedings or dismissing the case without prejudice | specifying appointment of an attorney as an alternative to holding competency proceedings or dismissing the case without prejudice | noting that "Webster's dictionary [defines] competency [as] to meet or to be sufficient; efficient; sufficient skills or training to do something; legally capable," and arguing that "Neilson does not have sufficient skills and training to meet the needs of plaintiff in this case" | noting that “Webster’s dictionary [defines] competency [as] to meet or to be sufficient; efficient; sufficient skills or training to do something; legally capable,” and arguing that “Neilson does not have sufficient skills and training to meet the needs of plaintiff in this case” | “Lawrence Krain appeals the dismissal with prejudice of eight lawsuits he filed, in pro se, in the district court.” (emphasis added) | “the court 21 may find that the incompetent person’s interests would be adequately protected by the appointment 22 of a lawyer” | “[T]he court may find that the incompetent person’s interests would be 9 adequately protected by the appointment of a lawyer.” | Court can appoint counsel for a pro se party when party is incompetent to protect self throughout the litigation | a district court may dismiss without prejudice for failure to comply with an order when a substantial question exists regarding a pro se litigant’s mental competence | “If an infant or incompetent 23 person is unrepresented, the court should not enter judgment which operates as a judgment on the merits without complying with Rule 17(c).”

Citator

Cited by
32 opinions
KRAIN v. SMALLWOOD,880 F.2d 1119(9th Cir. 1989)
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. DONALD SMALLWOOD; LYNN
WATERS; LUPE TORRES; KATHLEEN O'LEARY, ET AL.; ORANGE COUNTY MEDICAL
ASSOCIATION, DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. BRENT SUNDIN; JAMES ALFANO;
RICHARD BEACOM; ROBERT FITZGERALD; GERALD O'DONNELL, ET AL.,
DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. AUGUSTUS KASPER; RONI
NADLER; MARIA LINVILLE; BETTY LINVILLE; LUIS VARGAS; JAMES ALFANO; EVERETT
DICKEY; DON Z. MILLER; KEITH MONROE; JAY COHN, ET AL., DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. PAUL LEE; MARSHALL MORGAN;
RICHARD LAVINE; MORGAN, WENZEL McNICHOLAS; JAMES SLACK; HOWARD WEISS, ET
AL.; ROBERT PETER WEISS; BOOTH, MITCHEL STRANGE; HARRY WEISS,
DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. ANTHONY GUALTIERI, M.D.;
VERNON LEEPER; JOSEPH COSENTINO, M.D.; STEVEN WILFORD, ET AL.,
DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. P.J. ROTH; ROBERT GATES;
LYNN D. COMPTON; DANIEL KREMER; RICHARD TORRES; ROSE E. BIRD; ALICE WARSHAW;
GLEN BROWN; O'FLAHERTY, PRESTHOLT BENNINGTON; WARREN DEERING; JOHN
STALBERG, M.D.; WALLACE WADE, ET AL., DEFENDANTS-APPELLEES.
Page 1120
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. TIMES MIRROR CORPORATION;
TOM JOHNSON; ORANGE COUNTY REGISTER; FREEDOM NEWSPAPERS, INC.; BOB OSTMAN;
COUNTY OF ORANGE, ET AL., DEFENDANTS-APPELLEES.
LAWRENCE S. KRAIN, M.D., PLAINTIFF-APPELLANT, v. FREEDOM NEWSPAPERS, INC.;
R. DAVID THRESHIE; HALINA OSINSKI; MILTON C. GRIMES; JOHN DRATZ; COUNTY OF
ORANGE; THOMAS CROSBY; PAUL G. MAST, DEFENDANTS-APPELLEES.
Nos. 88-5632, 88-6356 to 88-6362.
United States Court of Appeals, Ninth Circuit.
Submitted June 26, 1989.fn*
Decided July 26, 1989.
Lawrence S. Krain, M.D., Chicago, Ill., pro per.

Matthew K. Ross, Rutan Tucker, Costa Mesa, Cal., for defendants-appellees.

John K. Butler, Portigal, Hammerton Allen, Santa Ana, Cal., for defendants-appellees.

Mark Wray and Halina F. Osinski, Duffern H. Helsing, Inc., Santa Ana, Cal., for defendants-appellees.

John J. Weber, O'Flaherty Belgum, Los Angeles, Cal., for defendants-appellees.

Eugene Illovsky, Munger, Tolles Olson, Los Angeles, Cal., for defendants-appellees.

Howard M. Fields and Debra Fischl, Fields, Hoffmann Brandon, Encino, Cal., for defendants-appellees.Page 1121

Edmund G. Farrell, Ill, Murchison Cumming, Los Angeles, Cal., for defendants-appellees.

Roger H. Granbo, Deputy County Counsel, Los Angeles, Cal., for defendants-appellees.

Steven M. Mitchel, Booth, Mitchel Strange, Los Angeles, Cal., for defendants-appellees.

Marsha S. Miller, Deputy Atty. Gen., Los Angeles, Cal., for defendants-appellees.

Ragnhild Reif, Gibson, Dunn Crutcher, Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN, Chief Judge, NELSON and BOOCHEVER, Circuit Judges.
BOOCHEVER, Circuit Judge:
[1] 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. InKrain 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. InKrain v. Sundin, 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 thatSmallwoodbe 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 theSundincases with prejudice.

[2] 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.SeeWestcott 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).

[3] 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.

[4] REVERSED AND REMANDED.Page 1122
  1. The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed.R.App.P. 34(a). ↩