* Judge of the U.S. Court of International Trade, sitting by designation.

1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-30025

CARLOS R. POREE,

Plaintiff - Appellant,

versus

RICHARD J. MORGANTE,

Defendant -

Appellee,

and

UNITED STATES OF AMERICA, on behalf of defendant

Richard Morgante,

Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

(00-CV-1348)

October 1, 2002

Before GARWOOD and CLEMENT, Circuit Judges, and RESTANI, Judge. *** Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R.

47.5.4.

2 PER CURIAM: **

Appellant filed a pro se complaint in federal district court seeking reinstatement to his position

with the Internal Revenue Service. The district court dismissed the action for failure to state a claim

because (1) appellant, a paranoid schizophrenic, lacked capacity to sue; and (2) appellant failed to

exhaust his administrative remedies. We conclude tha t t he district court erred in failing to make

factual findings, under Federal Rule of Civil Procedure 17(c), as to whether appellant required the

assistance of a guardian ad litem. We reverse and remand.

I. FACTS AND PROCEEDINGS

Carlos Poree worked as an IRS revenue agent from July 1967 until he was fired in December

1976. Eleven months later, Poree went on a shooting spree in New Orleans, killing one person and

injuring nine others. A Lou isiana jury rejected Poree’s insanity defense and convicted him of firstdegree murder.

In 1999, a federal district court granted Poree’s application for a writ of habeas corpus and

vacated his conviction and sentence. The court ordered the state to accept Poree’s plea of not guilty

by reason of insanity, and he has been committed to a Louisiana institution since then.

Poree filed the present action in June 2000 against the United States and Richard Morgante, the

former director of the New Orleans District Office of the IRS, seeking (1) reinstatement with the IRS;

(2) back pay for the period between his discharge in 1976 and when he was found not guilty by

reason of insanity in 1999; and (3) that he be placed on disability until he is declared sane again.

Adopting the magistrate’s report, the district court dismissed the action with prejudice because1 Capacity to sue is determined by the law of the district court’s state, see F ED

. R. C IV

. P.

17(b), and “mental incompetent[s]” lack capacity to sue in Louisiana. L A

. C ODE C IV

. P ROC . art.

684 (1999).

3 Poree, a paranoid schizophrenic, lacked capacity to sue under Federal Rule of Civil Procedure 17 1

and because he failed to exhaust his administrative remedies under the Civil Service Reform Act

.

See 5 U.S.C. § 7513(d) (providing for appeal of employment action to the Merit Systems Protecti on

Board); § 7703 (providing for judicial review of MSPB final orders).

II. ANALYSIS

On appeal, Po ree concedes that he lacks capacity to sue, but argues that the action should be

dismissed without

prejudice, so that he may sue when he regains his sanity. The government agrees

that the lawsuit should have been dismissed without prejudice. We agree with both parties that it was

error to dismiss the lawsuit with prejudice. See Johns v. County of San Diego

, 114 F.3d 874, 878 (9th

Cir. 1997) (minor’s lawsuit should be dismissed under Rule 17 without prejudice so that he may sue

when he reaches the age of majority).

The government argues that we should still affirm the dismissal, but modify the judgment to be

without prejudice. However, because we conclude that the district court failed to comply with Federal

Rule of Civil Procedure 17(c), we reverse and remand.

Rule 17(c) says that the “court s hall 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 protecti on of the infant or incompetent person.” F ED

. R. C IV

. P ROC

. 17(c) (emphasis added). In

a case involving an infant, we explained that

Rule 17(c) does not make the appointment of a guardian ad litem mandatory. If the court feels

that the infant’s interests are otherwise adequately represented and protected, a guardian ad

litem need not be appointed. But the rule does not mean that a t rial judge may ignore or4

overlook such a fundamental requirement for the protecti on of infants. We spell out the rule

to mean: (1) as a matter of proper procedure, the court should usually appoint a guardian ad

lit em; (2) b ut t he Court may, after weighing all the circumstances, issue such order as will

protect the minor in lieu of appointment of a guardian ad lit em; (3) and may even decide that

such appointment is unnecessary, though only after the Court has considered the matter and

made a judicial determination that the infant is protected without a guardian.

Roberts v. Ohio Casualty Ins. Co.

, 256 F.2d 35, 39 (5th Cir. 1958). In Adelman v. Graves

, we held

that the Roberts “approach is equally valid when d et ermining t he need for representation of an

incompetent person.” 747 F.2d 986, 989 (5th Cir. 1984).

The district court failed to consider the possibility of appointing a guardian ad litem for Poree.

Before the district court reaches the merits of his claims, it should make a judicial determination as

to whether his interests have been “adequately represented,” 256 F.2d at 39, or whether a guardian

ad litem should be appointed. Unless a guardian is appointed, or Poree otherwise gains capacity to

sue, the suit should not be dismissed with prejudice.

III. CONCLUSION

The judgment of the district court is reversed and the case is remanded for further proceedings.