Unpublished Disposition, 897 F.2d 533 (9th Cir. 1989)

Lawrence S. KRAIN, M.D., Plaintiff-Appellant,v.COUNTY OF ORANGE; Thomas Riley; Roger Stanton; GaddiVasquez; et al. Defendants-Appellees.

No. 88-6486.

United States Court of Appeals, Ninth Circuit.

Submitted March 6, 1990.Decided March 9, 1990.

Before SCHROEDER, DAVID R. THOMPSON and TROTT, District Judges.

MEMORANDUM^* 

This case is virtually identical to one recently decided by this court and involving the same plaintiff, Krain v. Smallwood, 880 F.2d 1119 (9th Cir. 1989). The holding in Smallwood controls this case, and the district court's dismissal with prejudice for failure to comply with an order of the court is reversed and remanded.

The plaintiff in this case has filed an action pro se against various defendants including the County of Orange in California. On June 29, 1989, a magistrate filed a memorandum and order re competency determination pursuant to Federal Rule of Civil Procedure 17(c). This memorandum found that a substantial question existed regarding Krain's competency to proceed pro se, and ordered Krain to produce information needed to determine whether Krain was competent. Krain failed to comply with the order, and the district court adopted the recommendation of the magistrate and dismissed the case with prejudice.

Krain v. Smallwood considered this exact issue and concluded 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." Smallwood, 880 F.2d at 1121. In these situations the district court has discretion to dismiss the case without prejudice, appoint a lawyer to represent Krain, or proceed with a competency determination. Id.

REVERSED AND REMANDED.