Eberhardt v. City of Greeley, CO et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:22-cv-03032-WJM-SBP
RANDY J. EBERHARDT,
Plaintiff,
v.
CITY OF GREELEY, CO, et al.,
Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
A Colorado state court found plaintiff Randy J. Eberhardt incompetent to stand trial in a
criminal case. See Register of Actions, People v. Eberhardt, No. 2021 CR 1359 (Weld County
District Court), last retrieved April 30, 2025. Based on this finding, the court attempted to secure
counsel and a guardian ad litem to represent Mr. Eberhardt in this federal civil action. See Order,
ECF No. 52. Ultimately, however, those efforts proved unsuccessful. See Notice, ECF No. 54.
On December 16, 2024, Defendants filed a Renewed Motion to Dismiss, ECF No. 55 (“Renewed
Motion”). In the meantime, it does not appear that a state court has overturned its prior finding of
incompetency as to Mr. Eberhardt or otherwise deemed him competent. See Register of Actions,
People v. Eberhardt, No. 2021 CR 1359 (Weld County District Court), last retrieved April 30,
2025.
Federal Rule of Civil Procedure 17(c)(2) provides that “[t]he court must appoint a
guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person
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who is unrepresented in an action.” Fed. R. Civ. P. 17(c)(2). Critically, if a person “is an
incompetent person entitled to the protection of Rule 17(c)(2) of the Federal Rules of Civil
Procedure,” this “court cannot dispose of any of his claims on the merits.” Wodiuk v. Graziano,
No. 14-cv-02931-WJM-CBS, 2017 WL 2438993, at *14 (D. Colo. June 6, 2017) (cleaned up).
The issue before the court is how best to protect Mr. Eberhardt now that it appears that he
will remain unrepresented indefinitely. At the outset, it is clear that the state court’s undisturbed
finding that Mr. Eberhardt is incompetent and his lack of representation prevent this court from
reaching the merits of his claims while those conditions remain in place. See id.; accord Powell
v. Symons, 680 F.3d 301, 307 (3d Cir. 2012). Less clear is what the court can or should do under
the current circumstances to protect Mr. Eberhardt’s interests. Surveying caselaw in the Tenth
Circuit produces no ready answer. Looking elsewhere, though, courts in similar factual scenarios
have settled on dismissing an incompetent plaintiff’s claims without prejudice to refiling as the
appropriate response after the court is unable to locate representation for that plaintiff.
The leading case on this particular issue is the Second Circuit’s decision in Berrios v.
New York City Housing Authority, where the court remanded the case back to the district court to
determine whether Berrios, the individual bringing suit on an incompetent individual’s behalf,
was a suitable guardian ad litem. 564 F.3d 130, 135 (2d Cir. 2009). While the Second Circuit did
not direct the district court to issue an order of dismissal without prejudice, it stated that such an
order would be appropriate if the district court determined that Berrios was not a suitable
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representative and the court was unable to secure representation for the incompetent individual.
Id.1
Courts across the country have relied on the Berrios court’s implicit approval of an order
of dismissal without prejudice as a means of protecting an unrepresented plaintiff found to be
incompetent or who is a minor. Punch v. Victoria Cnty. Jail Med. Dep’t, No. 6:22-cv-00022,
2023 WL 5613411, at *4-5 (S.D. Tex. Feb. 7, 2023) (recommending that an incompetent
plaintiff’s claims be dismissed without prejudice at the screening stage), recommendation
adopted, 2023 WL 5616177 (S.D. Tex. Aug. 29, 2023); Gonzalez, Next Friend of E.G. v. YMCA
USA, No. 1:21-cv-488, 2023 WL 2189457, at *3 (W.D. Mich. Jan. 26, 2023) (dismissing without
prejudice action brought on minor child’s behalf for lack of representation), recommendation
adopted sub nom., Gonzalez, Next Friend of E.G. v. YMCA USA, 2023 WL 2184893 (W.D. Mich.
Feb. 23, 2023); Noethe v. Reg’l Health Network, Inc., No. CIV. 18-5082-JLV, 2020 WL 998942,
at *1 (D.S.D. Mar. 2, 2020) (“Plaintiffs must obtain counsel to represent themselves as guardians
or next friends of their minor child. If they are not able to obtain counsel, the court will dismiss
the claims brought on behalf of H.C.N. and require plaintiffs to show why their complaint should
not be fully dismissed.”); Lewis v. Ditomasso, No. 19-cv-10665 (CM), 2019 WL 6701827, at *1-
1 See also Johns v. Cnty. of San Diego, 114 F.3d 874, 878 (9th Cir. 1997) (“[Minor child] should
be given the opportunity to pursue his cause of action when he reaches eighteen[,]
[b]ecause the goal [of Rule 17(c)] is to protect the rights of infants, the complaint should not
have been dismissed with prejudice as to [minor child].”); cf. Krain v. Smallwood, 880 F.2d
1119, 1121 (9th Cir. 1989) (“When the party refuses to cooperate [with competency evaluation],
however, the court may dismiss the case without prejudice.”) (citing Bodnar v. Bodnar, 441 F.2d
1103, 1104 (5th Cir. 1971) (affirming a dismissal without prejudice where the plaintiff refused to
submit to a mental examination to determine whether she was competent)).
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2 (S.D.N.Y. Dec. 6, 2019) (“The Court therefore dismisses this action without prejudice because
Plaintiff has filed it without a guardian ad litem.”); Blount v. Maness, No. CV 1:14-cv-297,
2015 WL 5719851, at *7 (E.D. Tex. Sept. 28, 2015) (adopting recommendation of dismissal,
saying “to the extent that Green is indeed a minor or incompetent person, and is not properly
represented as discussed above, the Court finds that it does not have the authority to adjudicate
his claims on the merits at this point. Dismissal of his claims should therefore be without
prejudice to refiling.”); Merritt v. McKenney, No. C 13-01391 JSW, 2013 WL 4552672, at *5
(N.D. Cal. Aug. 27, 2013) (“[F]ollowing the reasoning in Berrios, [the court] dismisses the
claims that were purportedly brought on Ms. Pacheco’s behalf without prejudice.”) (emphasis in
original); Kelly v. Univ. Health Sys., No. 7:11-cv-24-FL, 2011 WL 780597, at *3 (E.D.N.C. Feb.
25, 2011) (dismissing case without prejudice where the plaintiff, who was acting on behalf of her
incapacitated mother, was unable to secure counsel).2
Further, it appears that at least one court in the Tenth Circuit has viewed dismissal
without prejudice as sufficient to protect a minor child’s interests. Brick v. Estancia Mun. Sch.
Dist., No. 1:20-cv-00881-WJ-KK, 2021 WL 124494, at *3 (D.N.M. Jan. 13, 2021) (“Judge
Herrera’s dismissal of the minor A.B.’s claims was without prejudice, which protects A.B.’s
interests because A.B.’s claims could be dismissed with prejudice if Plaintiff, who does not
2 See also Calabrese v. State of Cal., No. EDCV 22-524-JWH (KK), 2022 WL 18863267, at *3
(C.D. Cal. Oct. 11, 2022) (“In view of Calabrese’s representations that she is not competent to
represent herself, the Court finds that the dismissal of this action without prejudice sufficiently
protects Calabrese’s interests.”) (cleaned up), aff’d sub nom. Calabrese v. State Bar of Cal.,
No. 22-56005, 2023 WL 2207110 (9th Cir. Feb. 24, 2023); Bennett v. Cnty. of Riverside, No. ED
CV 14-0579-VAP, 2014 WL 4162564, at *3 (C.D. Cal. Aug. 20, 2014) (“If and when the
conservator authorizes the commencement of this litigation, or Plaintiff is deemed competent by
a state court, he can re-file this action.”).
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possess the legal expertise to competently prosecute A.B.’s claims, is allowed to represent
A.B.”); see also M.K. by & through Ramler v. Poudre Sch. Dist. Bd. of Educ., No. 21-cv-02538-
PAB-KLM, 2022 WL 1912223, at *3 (D. Colo. June 3, 2022) (“[T]he Court finds that the claims
asserted by M.K. by and through his parent Ms. Ramler must be dismissed without prejudice.”),
recommendation adopted sub nom. Rambler v. Poudre Sch. Dist. Bd. of Educ., 2022 WL
2702892 (D. Colo. July 12, 2022).
While Berrios is not binding precedent that this court must follow, the court is persuaded
by its reasoning that dismissal without prejudice is a means of protecting the interests of an
incompetent individual. Accordingly, the court respectfully RECOMMENDS that Mr.
Eberhardt’s claims be DISMISSED without prejudice to refiling in a new suit upon (1) Mr.
Eberhardt obtaining counsel and a guardian ad litem to represent him and bring suit on his
behalf, or (2) a judicial finding that Mr. Eberhardt has been restored to competency. The court
further RECOMMENDS that this case be closed and the Renewed Motion to Dismiss, ECF
No. 55, be DENIED without prejudice.3
3 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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DATED: April 30, 2025 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
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