United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2006
Charles R. Fulbruge III
Clerk
06-70023
CARLOS GONZALEZ MAGALLÓN, Consul General of Mexico and Next
Friend of Angel Maturino Resendiz,
Plaintiff-Appellant,
v.
BRAD LIVINGSTON, Executive Director, Texas Department of
Criminal Justice; DOUGLAS DRETKE, Director, Correctional
Institutions Division Texas Department of Criminal Justice;
CHARLES O’REILLY; UNKNOWN EXECUTIONERS,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Earlier this week, the Supreme Court decided that Eighth
Amendment challenges to a state’s method of execution may properly
be brought under 42 U.S.C. § 1983. See Hill v. Crosby, __ U.S. __,
No. 05-8794, slip op. (June 12, 2006). We have such a suit before
us today. In this opinion, however, we only address narrow issues
of civil procedure. The result is that we affirm in part and
modify in part, remanding for further proceedings consistent with
this opinion.
I. BACKGROUND
Angel Resendiz is a Mexican national who was convicted of
capital murder in Texas in 1998. His execution date, originally
set for March 10, 2006, was reset by the state for June 27, 2006.
The nominal plaintiff in this case is Carlos Magallón, the Consul
General of Mexico, suing as Resendiz’s next friend.1 The Consul
General brought this lawsuit in March 2006 after Resendiz failed to
appeal timely a district court’s denial of his habeas corpus
petition. See generally Resendiz v. Dretke, No. 05-70058, slip op.
(5th Cir. June 9, 2006). The complaint alleged, inter alia, that
Texas’s three-drug lethal injection cocktail violates the Eighth
Amendment because it subjects Resendiz to a risk of unnecessary
suffering. As to the propriety of the Consul General suing as
Resendiz’s next friend, the complaint alleged that Resendiz was
“not competent to proceed in his own behalf due to mental illness.”
The state moved to dismiss, arguing that the Consul General
could not properly bring this action on Resendiz’s behalf. In
response, Plaintiffs submitted extensive documentation in an
attempt to establish Resendiz’s incompetence. Considering these
documents, the district court held that it had not been presented
with anything suggesting that Resendiz could not pursue this action
in his own capacity and noted that he was presently represented by
1
We refer to the Consul General and Resendiz together simply
as “Plaintiffs.”
2
counsel in his habeas appeal. It then dismissed the suit with
prejudice for want of standing. The district court, after
discussing the dilatoriness doctrine, also expressed the view that,
if standing were present, then a serious question about the delay
in filing would be raised. However, we do not read its opinion to
expressly base the dismissal on dilatoriness.
Following the district court’s dismissal, Plaintiffs did not
seek leave to substitute Resendiz as the proper party in the
district court. They immediately appealed to this Court and sought
an expedited briefing schedule, which this Court granted. Neither
side has requested a stay of execution. In their briefing to us,
Plaintiffs argue that the district court erred by dismissing the
complaint for failing to sue in the name of the real party in
interest.
II. STANDARD OF REVIEW
A preliminary, pre-answer objection that the plaintiff is not
the real party in interest is analogous to a motion under Federal
Rule of Civil Procedure 12(b)(6). See 6A CHARLES ALAN WRIGHT,
ARTHUR R. MILLER & MARY KAY KANE, FED. PRAC. & PROC. § 1554 (2d ed.
2006). It presents legal issues that we will review de novo. See
Dennis ex rel. Butko v. Budge, 378 F.3d 880, 888 n.5 (9th Cir.
2004) (holding that the standing of a next friend is reviewed de
novo); cf. Arguello v. Conoco, 330 F.3d 355, 361 (5th Cir. 2003)
(questions of standing reviewed de novo).
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Once a district court has decided that an action is not
prosecuted by the real party in interest, it must then decide what
remedy is appropriate. We review a court’s decision to employ the
sanction of dismissal for abuse of discretion. See Wieburg v. GTE
Southwest Inc., 272 F.3d 302, 308 (5th Cir. 2001).
III. DISCUSSION
We consider first whether the district court correctly
concluded that the Consul General could not sue as Resendiz’s next
friend. That question we answer in the affirmative. Turning then
to the appropriate remedy, however, we hold that the court abused
its discretion by not affording the Plaintiffs an opportunity to
offer substitution.
A. WHETHER THE CONSUL GENERAL CAN SUE AS NEXT FRIEND
Plaintiffs argue that the district court erred by holding that
the Consul General could not sue as Resendiz’s next friend. Under
Federal Rule of Civil Procedure Rule 17(c), an “incompetent person
who does not have a duly appointed representative may sue by a next
friend.” The question for us, then, is whether Resendiz qualifies
as an “incompetent person” within the meaning of Rule 17.
We have held that individuals are incompetent for Rule 17
purposes if they lack “the capacity to litigate under the law of
[their] domicile.” See Thomas v. Humfield, 916 F.2d 1032, 1034
(5th Cir. 1990). In Texas, the standard is whether individuals,
“by reason of mental or bodily infirmity, [are] incapable of
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properly caring for their own interests in the litigation.” Lindly
v. Lindly, 102 Tex. 135, 141 (1908); Berger v. Berger, 578 S.W.2d
547, 549 (Tex. Civ. App.–Houston [1st Dist.], no writ). Plaintiffs
argue that the district court failed to apply this Texas law and
instead applied the ordinary criminal law standard for competency
to stand trial. See 44 TEX. JUR. 3d, INCOMPETENT PERSONS § 6
(“Mental capacity is a comparative term that varies with the
character of the act to which it refers.”). As noted above,
however, our review is de novo. As such, if the district court’s
reasoning was erroneous, we can ignore it. We apply the Lindly
standard recited above.
In response to the state’s motion to dismiss, Plaintiffs
presented evidence documenting Resendiz’s mental illness.
According to Plaintiffs, Resendiz frequently engages in self-
mutilation, including banging his head on the door until it bleeds
and “cutting his face, chin, arm, head, legs, feet, neck and penis
with a razor blade.” He is also apparently delusional. Plaintiffs
document that Resendiz believes he is a “man-Angel”—that after his
execution he will “only go to sleep for three days” and that he
ultimately will “awaken with a renovated body to continue to do
God’s work” and “to vanquish God’s enemies.”
Plaintiffs’ allegations paint a picture of a very troubled
individual. The question, however, is not whether Resendiz is
mentally ill. Rather, it is whether Resendiz can care for his own
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interests in this litigation. Lindly, 102 Tex. at 141.
Plaintiffs’ allegations do not show that Resendiz is incapable of
doing so. According to Plaintiffs’ own documentation, Resendiz
realizes that he will be “administered . . . lethal injection.” He
knows that “the government will place a needle in his arm” in an
attempt “to stop his heart, lungs, and brain function.” He
apparently remains able to consult with his attorneys with some
understanding about their effort to challenge the lethal injection
protocol that he knows will be administered to him. (See Reply Br.
at 4); see also Magallón, at 13. In any event, Plaintiffs do not
argue to the contrary. Limited as Resendiz’s faculties may be, he
appears to have the legal capacity to maintain this section 1983
action in his own name.
Plaintiffs argue, however, that Resendiz’s capacity to consult
with his attorneys is immaterial. (Plaintiff Br. 20.) We
disagree. An ability to communicate with your attorneys—to tell
them your interests and to give them information to help them
effectuate those interests—tends to show that you have the ability
to take care of yourself in litigation. The district court
properly took this into account.
Plaintiffs also contend that the complaint’s generalized
assertion that Resendiz was incompetent should be enough to entitle
him to a hearing on the issue. Such a boilerplate allegation of
incompetency, however, was insufficient. Cf. Vulcan Materials v.
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City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001) (“Here, the
complaint did not contain a short and plain statement of the claim,
only legal conclusions of such generality as to fail to give fair
notice.”). This is especially true where the Plaintiffs’ position
on the issue was clarified by subsequent filings in response to the
state’s motion to dismiss. The district court properly assumed
that specific statements in Plaintiffs’ response were true. Since
those allegations about Resendiz’s mental illness, even if true,
would not show his legal incapacity, the district court did not
need to hold an evidentiary hearing. See United States v. Powell,
354 F.3d 362, 370 (5th Cir. 2003).
We also note that Resendiz himself is represented by counsel
experienced in death penalty cases, who litigated the habeas appeal
in Resendiz’s own name. That reality is fundamentally at odds with
Resendiz proceeding by next friend in this case. For these
reasons, the court below correctly held that Resendiz could pursue
this action on his own behalf and, therefore, needed no next
friend.
We hasten to emphasize the limits of our holding. That
Plaintiffs have not made allegations sufficient under Rule 17 to
establish that Resendiz is incapable of bringing a section 1983
lawsuit does not mean, necessarily, that he is competent to be
executed. Proceedings currently are pending in state court to
determine whether Resendiz is competent to be executed under Texas
7
Code of Criminal Procedure Article 46.05 and Ford v. Wainright, 477
U.S. 399 (1986). Those proceedings present different questions of
competency than those that we have addressed today. We express no
opinion on them. Moreover, we need not address here whether
Resendiz was competent, under any standard, prior to the filing of
the instant lawsuit. All that is relevant for our purposes is that
Plaintiffs did not make allegations sufficient to show that
Resendiz was incompetent under Rule 17 at the time that the Consul
General initiated this action.
B. WHETHER THE SANCTION OF DISMISSAL WAS APPROPRIATE
Although the district court’s substantive holding was correct,
its remedy was not. The court dismissed with prejudice Plaintiffs’
complaint after determining that the Consul General could not act
as Resendiz’s next friend. As Plaintiffs point out, however,
Federal Rule of Civil Procedure 17 provides: “No action shall be
dismissed on the ground that it is not prosecuted in the name of
the real party in interest until a reasonable time has been allowed
after objection for ratification of commencement of the action by,
or ratification, joinder, or substitution of, the real party in
interest . . . .”
In accord with advisory committee notes, our case law has put
a gloss on Rule 17's unqualified language. It holds that a
plaintiff must have a reasonable basis for naming the wrong party
to be entitled to ratification, joinder, or substitution. See
8
Wieburg, 272 F.3d at 308 (citing Advanced Magnetics v. Bayfront
Partners, 106 F.3d 11, 20 (2d Cir. 1997)). Here, the Consul
General has indicated his belief, not wholly unfounded, that
Resendiz was incompetent. That was a reasonable explanation for
Plaintiffs’ failure to bring suit in the correct party’s name.
Under the circumstances, the district court abused its discretion
by ordering dismissal with prejudice before allowing a reasonable
time for ratification, joinder, or substitution. The court should
have utilized those less drastic alternatives to dismissal. See
id.
C. ALTERNATIVE GROUNDS FOR AFFIRMANCE
The state argues that we may affirm the court’s dismissal on
alternative grounds. First, it contends that Plaintiffs’
underlying Eighth Amendment claim is frivolous. Second, the state
argues that Plaintiffs delayed inequitably before bringing this
suit. See, e.g., Harris v. Johnson, 376 F.3d 414, 417 (5th Cir.
2004) (holding that prejudicial dilatoriness without reasonable
explanation results in an equitable bar to method-of-execution
claims). We think these questions are best handled by the court
below in the first instance in the event that they arise on remand.
IV. CONCLUSION
The district court’s decision that the Consul General cannot
sue as Resendiz’s next friend is AFFIRMED. However, we MODIFY the
judgment of dismissal to provide that this suit can continue if
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Resendiz chooses to be substituted as the proper plaintiff. This
case is REMANDED accordingly.
10