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Click here for the full text of this decision FACTS: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 Magall�n, the Consul General of Mexico, suing as Resendiz’s next friend. 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. 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 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. The district court did not 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 the 5th U.S. Circuit Court of Appeals and sought an expedited briefing schedule, which the appellate court granted. Neither side has requested a stay of execution. In their briefing, plaintiffs argue that the district court erred by dismissing the complaint for failing to sue in the name of the real party in interest. HOLDING:The district court’s decision that the consul general cannot sue as Resendiz’s next friend is affirmed. The court modifies the judgment of dismissal to provide that this suit can continue if Resendiz chooses to be substituted as the proper plaintiff. The case is remanded. 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). It presents legal issues that the court reviews de novo. 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 is whether Resendiz qualifies as an “incompetent person” within the meaning of Rule 17. Individuals are incompetent for Rule 17 purposes if they lack “the capacity to litigate under the law of [their] domicile.” Thomas v. Humfield, 916 F.2d 1032 (5th Cir. 1990). In Texas, the standard is whether individuals, “by reason of mental or bodily infirmity, [are] incapable of properly caring for their own interests in the litigation.” Lindly v. Lindly, 102 Tex. 135 (1908). 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. Although Resendiz is mentally ill, the question is whether Resendiz can care for his own interests in this litigation. Plaintiffs’ allegations do not show that Resendiz is incapable of doing so. The plaintiffs argue that Resendiz’s capacity to consult with his attorneys is immaterial. 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, the court decides. The court notes 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.” The Consul General indicated his belief that Resendiz was incompetent. That was a reasonable explanation for Plaintiffs’ failure to bring suit in the correct party’s name, the court finds. 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, the court holds. OPINION:Benavides, J.; Higginbotham, Benavides and Dennis, J.J.

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