Ruthen Weems, III v. Brent Stroman , 694 F. App'x 272 ( 2017 )


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  •      Case: 16-50943      Document: 00514086723         Page: 1    Date Filed: 07/25/2017
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 16-50943                                 FILED
    July 25, 2017
    Lyle W. Cayce
    RUTHEN JAMES WEEMS, III,
    Clerk
    Plaintiff-Appellant
    v.
    BRENT STROMAN, Waco Chief of Police; PARNELL MCNAMARA,
    McLennan County Sheriff; OFFICER 1; OFFICER 2; OFFICER 3; OFFICER
    4; SHERIFF'S DEPUTY,
    Defendants-Appellees
    Appeal from the United States District Court
    for the Western District of Texas
    USDC No. 6:15-CV-332
    Before DAVIS, CLEMENT, and OWEN, Circuit Judges.
    PER CURIAM: *
    Ruthen James Weems, III, Texas prisoner # 144318, has filed a motion
    for leave to proceed in forma pauperis (IFP) to appeal the district court’s
    judgment dismissing his civil rights complaint. He has also filed a motion for
    the appointment of appellate counsel. The district court denied Weems’s IFP
    motion and certified that the appeal was not taken in good faith. By moving
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
    Case: 16-50943     Document: 00514086723     Page: 2   Date Filed: 07/25/2017
    No. 16-50943
    for IFP status, Weems is challenging the district court’s certification. See
    Baugh v. Taylor, 
    117 F.3d 197
    , 202 (5th Cir. 1997).
    Weems does not challenge the district court’s dismissal of his claims
    against Waco Police Chief Brent Stroman and McLennan County Sheriff
    Parnell McNamara. He also does not challenge the district court’s dismissal of
    his official capacity claims against four unidentified Waco Police Department
    officers and one unidentified McLennan County sheriff’s deputy (collectively
    “the John Doe defendants”). These issues are therefore abandoned. See Yohey
    v. Collins, 
    985 F.2d 222
    , 224-25 (5th Cir. 1993).
    Instead, Weems contends that the district court abused its discretion in
    dismissing his individual capacity claims against the John Doe defendants for
    want of prosecution and denying his motion for reconsideration. Although the
    district court’s dismissal of these claims was without prejudice, a refiled
    complaint would likely be barred by the statute of limitations. We therefore
    apply a heightened standard and will affirm the dismissal only where there is
    a clear record of delay or contumacious conduct, and the interests of justice
    would not be better served by a lesser sanction. See Coleman v. Sweetin, 
    745 F.3d 756
    , 766 & n.8 (5th Cir. 2014); Millan v. USAA Gen. Indem. Co., 
    546 F.3d 321
    , 326 (5th Cir. 2008).
    The record does not reflect purposeful delay or contumacious conduct by
    Weems.    Moreover, plaintiffs should be afforded an opportunity through
    discovery to identify unknown defendants. Colle v. Brazos Cnty., Tex., 
    981 F.2d 237
    , 243 n.20 (5th Cir. 1993). Therefore, the district court abused its discretion
    in dismissing Weems’s individual capacity claims against the John Doe
    defendants for want of prosecution. See 
    Coleman, 745 F.3d at 766-67
    .
    Because Weems is financially eligible to proceed IFP on appeal and has
    demonstrated that his appeal involves legal points arguable on their merits,
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    Case: 16-50943   Document: 00514086723     Page: 3   Date Filed: 07/25/2017
    No. 16-50943
    see Howard v. King, 
    707 F.2d 215
    , 220 (5th Cir. 1983), his motion to proceed
    IFP is granted, see 
    Baugh, 117 F.3d at 202
    . The district court’s judgment
    dismissing Weems’s individual capacity claims against the John Doe
    defendants is vacated and remanded for further proceedings. The district
    court’s judgment is affirmed with respect to all other issues. Weems’s motion
    for the appointment of appellate counsel is denied as unnecessary.
    IFP MOTION GRANTED; APPOINTMENT OF COUNSEL MOTION
    DENIED; JUDGMENT AFFIRMED IN PART, VACATED AND REMANDED
    IN PART.
    3