     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  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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                                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.




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