Case: 10-11252 Document: 00511581866 Page: 1 Date Filed: 08/24/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2011
No. 10-11252
Summary Calendar Lyle W. Cayce
Clerk
MARK A. COWART,
Plaintiff-Appellant
v.
DALLAS COUNTY JAIL; JOHN DOE 1-10, SRT Officers,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:10-CV-1800
Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mark A. Cowart appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 civil rights complaint for failing to identify the John Doe defendants with
enough specificity to enable service of process. While the district court dismissed
Cowart’s complaint without prejudice, the dismissal is effectively with prejudice
due to the two-year statute of limitations. See Owens v. Okure, 488 U.S. 235,
249-50 (1989); Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996); Cooper v.
Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-11252 Document: 00511581866 Page: 2 Date Filed: 08/24/2011
No. 10-11252
The record does not show that Cowart’s failure to identify the John Doe
defendants was the result of contumaciousness or an attempt to delay the
proceedings. See Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1191 (5th Cir.
1992). Further, Cowart was likely entitled to conduct discovery to determine the
identities of the unnamed defendants, as “[i]t is conceivable that” readily
available documentation would reveal the identities of some of the John Doe
defendants. See Murphy v. Kellar, 950 F.2d 290, 293 (5th Cir. 1992). Thus, the
judgment of the district court is VACATED and the case is REMANDED to
afford Cowart the opportunity to conduct discovery. See id.
2