         10-2042-cv
         James v. State of New York

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 22nd day of March, two thousand eleven.
 5
 6       PRESENT: RICHARD C. WESLEY,
 7                DENNY CHIN,
 8                RAYMOND J. LOHIER, JR.,
 9                         Circuit Judges.
10
11
12
13       DONNA M. JAMES,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                10-2042-cv
18
19       THE STATE OF NEW YORK, COMMISSIONER OF THE DEPARTMENT OF
20       SOCIAL SERVICES FOR THE CITY OF NEW YORK,
21
22                                     Defendants-Appellees.
23
24
25       FOR APPELLANT:                DONNA M. JAMES, pro se, Brooklyn, NY.
26
27       FOR APPELLEES:*               OREN L. ZEVE, Managing-Administrative
28                                     Assistant Solicitor General, for Andrew
29                                     Cuomo, Attorney General for the State of
30                                     New York, New York, NY.
31

                *
                Appellees have submitted one-page letters denying that they were served
         with the complaint in the proceedings below and announcing their intention not
         to appear or file any further papers on appeal.
1                       PAMELA SEIDER DOGLOW, Senior Counsel, for
2                       Michael A. Cardozo, Corporation Counsel
3                       for the City of New York, New York, NY.
4
5         Appeal from the United States District Court for the
6    Eastern District of New York (Gleeson, J.).
7
8        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

9    AND DECREED that the judgment of the district court be

10   VACATED and the case REMANDED for further proceedings

11   consistent with this order.

12       Appellant Donna M. James, proceeding pro se, appeals

13   from the district court’s judgment sua sponte dismissing her

14   complaint with prejudice on the grounds that (1) she has

15   been adjudicated incapacitated in state court; (2) she has

16   guardians appointed to her; (3) none of her state-appointed

17   guardians responded to the court’s order directing them to

18   respond if they wished to pursue the action.   We assume the

19   parties’ familiarity with the underlying facts, the

20   procedural history of the case, and the issues on appeal.

21       This Court generally reviews sua sponte dismissals de

22   novo.   See, e.g., Giano v. Goord, 250 F.3d 146, 149-50 (2d

23   Cir. 2001).   Additionally, this Court reviews a decision as

24   to whether to appoint a guardian ad litem for abuse of

25   discretion.   See Ferrelli v. River Manor Health Care Ctr.,

26   323 F.3d 196, 200 (2d Cir. 2003).   A court may not determine


                                   2
1    on its merits the claim of an incompetent person who is not

2    properly represented.    Berrios v. N.Y.C. Hous. Auth., 564

3    F.3d 130, 134 (2d Cir. 2009).

4        “A minor or incompetent person normally lacks the

5    capacity to bring suit for himself.”       Id. (citing N.Y.

6    C.P.L.R. 1201 (McKinney 1997); Fed. R. Civ. P. 17(b)(1)

7    (capacity of individual claimant determined “by the law of

8    the individual’s domicile”)).       Pursuant to Federal Rule of

9    Civil Procedure 17(c)(2), “[t]he court must appoint a

10   guardian ad litem – or issue another appropriate order – to

11   protect a minor or incompetent person who is unrepresented

12   in an action.”

13       Here, the district court was correct to sua sponte

14   raise the issue of competency and representation by a

15   general guardian under Rule 17(c), but its subsequent

16   actions were erroneous for the reasons set forth below.

17       First, the district court erred by dismissing the

18   action with prejudice.   In its April 2010 order, the court

19   noted that if James’s guardians did not respond to the

20   order, it would dismiss the action without prejudice.

21   Instead of doing so, the district court dismissed the action

22   with prejudice.   Moreover, the district court must not reach

23   the merits of a claim filed on behalf of an incompetent


                                     3
1    person who is not properly represented by a suitable

2    guardian and through counsel.       See Berrios, 564 F.3d at 134-

3    35; see also Krain v. Smallwood, 880 F.2d 1119, 1121 (9th

4    Cir. 1989).     Although the dismissal here did not

5    specifically address the merits, it will nonetheless have

6    the same collateral effects as a dismissal on the merits

7    because the district court dismissed the complaint with

8    prejudice.    See Fed. R. Civ. P. 41(b) (“Unless the dismissal

9    order states otherwise, a dismissal order under this

10   [involuntary dismissal] subdivision [ ] and any dismissal

11   not under this rule — except one for lack of jurisdiction,

12   improper venue, or failure to join a party under Rule 19 —

13   operates as an adjudication on the merits.”); Yonkers

14   Contracting Co. v. Port Auth. Trans-Hudson Corp., 93 N.Y.2d

15   375, 380 (1999) (“A dismissal ‘with prejudice’ generally

16   signifies that the court intended to dismiss the action ‘on

17   the merits’ . . . .     We have used the words ‘with prejudice’

18   interchangeably with the phrase ‘on the merits’ to indicate

19   the same preclusive effect.”) (citations omitted).

20       Second, although the district court had reason to

21   believe that James had been determined incapable of managing

22   her own affairs, it did not establish that fact

23   conclusively.     The court noted that documents attached to


                                     4
1    James’s complaint indicated that she had been adjudicated

2    incapacitated in 2003 in state court and that the state

3    court had appointed guardians of her person and property.

4    In light of the factual background before it, the district

5    court should have first determined whether James was in fact

6    incompetent, whether she still had guardians, whether, if

7    so, they were aware of her attempt to file suit, and whether

8    they wished to undertake the suit on her behalf.

9          On remand, if James is indeed incompetent to manage the

10   litigation the district court should appoint James a

11   guardian ad litem if none of the state-appointed guardians

12   appear in the matter.1        The appointment by the district

13   court of a guardian ad litem may be appropriate in this case

14   even if state-appointed guardians do appear, since James’s

15   filings allege that at least one of her guardians has a

16   financial interest in the guardianship adverse to her own

17   interests.     Federal courts have inherent, discretionary

18   power to appoint a guardian ad litem when it appears that an

19   incompetent person’s general representative has interests

20   which may conflict with those of the person he is supposed

21   to represent.      See Ad Hoc Comm. of Concerned Teachers v.

           1
            James’ guardians appear to be attorneys admitted to practice law in New
     York according to the state court records submitted by James. It may well be
     that the district court will choose to appoint a guardian for James to assist
     the court in locating the state-appointed guardians.

                                           5
1    Greenburgh # 11 Union Free Sch. Dist., 873 F.2d 25, 30 (2d

2    Cir. 1989); Adelman ex rel. Adelman v. Graves, 747 F.2d 986,

3    988 (5th Cir. 1984).   However, we leave the question of

4    whether a guardian ad litem should be appointed for the

5    district court to address in the first instance.

6        Accordingly, the judgment of the district court is

7    VACATED and we REMAND the case to the district court for

8    further proceedings in accordance with this order.

 9
10                               FOR THE COURT:
11                               Catherine O’Hagan Wolfe, Clerk
12
13




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