In Boudy v. McComb Sch. Dist., No. 24-60386 (5th Cir. Feb. 24, 2026), the Fifth Circuit avoids, though bookmarking for another time, whether it is an abuse of discretion to dismiss a case in the face of pro se party’s suspected incompetency. The plaintiff-appellant urged the court to adopt the Ninth Circuit’s rule on this issue, but the panel finds it unnecessary to decide in this case.
Plaintiff, “a former employee of the McComb School District, filed this employment discrimination lawsuit in April 2023.” Plaintiff mostly proceeded pro se, represented for a few months by appointed counsel who later withdrew.
In the case management order, the district court granted defendant leave to seek a Fed. R. Civ. P. 35 examination. Plaintiff’s objections to the order were overruled.
Thereafter, in a further motion for appointment of counsel, the plaintiff disclosed her disability status: “PTSD, bipolar disorder, and schizoaffective disorder.” The district court ordered plaintiff sua sponte to submit to a mental examination, as the “court was concerned about the ‘mental status of [plaintiff] and the validity of the outcome, if [plaintiff] is determined or claims to be incompetent.’”
Following plaintiff’s failure to comply with this and various other orders, the district court ordered plaintiff “to show cause why she has not participated or responded to the Court’s orders in any way.” Plaintiff failed to appear at a subsequent show-cause hearing, and the district court eventually dismissed the case with prejudice under Fed. R. Civ. P. 41(b) as a sanction for noncompliance. She then appealed (represented by pro bono counsel).
The Fifth Circuit affirms (with a two-judge panel; the third panelist took inactive status during the pendency of the appeal). The panel rejects arguments that the district court abused its discretion under Rule 41(b) in issuing a dismissal sanction and secondarily that Fed. R. Civ. P. 37 did not support dismissal for failure to comply with a Rule 35 examination order.
The panel pauses over the final argument: that Fed. R. Civ. P. 17(c) required that the district court consider protections for an incompetent party before entering a dismissal. Under that rule, “[t]he court must appoint a guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person who is unrepresented in an action.”
Plaintiff cited Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35 (5th Cir. 1958), as support that the district court here should have considered measures to protect her first due to incompetency. But plaintiff, according to the panel, “misses a key distinction between the Roberts approach and her argument: this court has only required the Roberts approach when a party has been adjudicated incompetent. At the time of dismissal, [plaintiff]’s incompetence was still in question. [Plaintiff] cites no authority suggesting such an approach is required when a party’s incompetence is merely in question.”
The plaintiff also cited Krain v. Smallwood, 880 F.2d 1119, 1121 (9th Cir. 1989), for the proposition that the rule prohibits dismissals with prejudice “when a substantial question exists regarding the competence of an unrepresented party.”
Holds the panel, with respect to the Ninth Circuit rule, the “Fifth Circuit has not taken such a step, and we find it unnecessary to determine whether we should take such a step here for three reasons.” These are that (1) “it is unclear whether [plaintiff]’s competence was in ‘substantial question’” despite the Rule 35 order; (2) “it is ambiguous whether the court gave credence to her ‘claims’ of incompetency or questioned her competence at the time it imposed sanctions”; and (3) limitation had already run on the claim, so dismissal without prejudice in this case would have had the same effect.
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