Opinion
4:23-CV-174-DMB-DAS
10-05-2023
BEAU MCPHAIL PLAINTIFF v. PERCY L. LYNCHARD DEFENDANT
ORDER
DEBRA M. BROWN UNITED STATES DISTRICT JUDGE
On September 22, 2023, the Court ordered Beau McPhail, a minor, to show cause within fourteen days why this case should not be dismissed for his lack of capacity to sue. Doc. #5. In response to the show cause order, McPhail filed a document titled “Motion Objecting to This Court's Order Regarding Age Limitation to Sue” in which he confirms he is “a minor child” seeking “the right to litigate ... and vindicate his federal rights.” Doc. #6 at PagelD 92, 105. But because McPhail still fails to pursue his claims through a next friend, guardian, or other proper representative and thus still lacks capacity to sue, this case is Dismissed without prejudice.
McPhail's complaint alleges that he “at all times relevant... was a minor child subject of a child custody civil suit” who “remains a minor.” Doc. #1 at PageID 7, 22. Mississippi statute generally defines a “minor” as “any person, male or female, under twenty-one (21) years of age.” Miss. Code Ann. § 1-3-27. “Unlike standing, the lack of which cannot be waived or cured, capacity to sue can be cured.” Lewis v. Ascension Parish Sch. Bd., 662 F.3d 343, 347 (5th Cir. 2011) (citing “Fed. Rule Civ. Pro. 17(c)”).
The document was docketed as a response to the show cause order rather than as a motion. To the extent McPhail intended the document to be filed as a motion, it (including its embedded request for recusal) is denied for the same reasons stated in the Court's show cause order.
McPhail advises that he “is NOT asking for an attorney to be appointed.” Doc. #6 at PageID 95.
SO ORDERED,