Gallegos v. Slidell Police Department ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 23, 2008
No. 08-30248
Summary Calendar Charles R. Fulbruge III
Clerk
RICHARD GALLEGOS, JR
Plaintiff-Appellant
v.
SLIDELL POLICE DEPARTMENT; Slidell Police Officers; UNIDENTIFIED
PARTIES
Defendants-Appellees
Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CV-9494
Before JONES, Chief Judge, and DENNIS and HAYNES, Circuit Judges.
PER CURIAM:*
Richard Gallegos, Jr. appeals the district court’s dismissal of his civil
rights complaint for failure to comply with a court order to identify by name the
Slidell police officers discussed in his complaint. Although the district court
dismissed Gallegos’s suit without prejudice, the dismissal is effectively with
prejudice due to the one-year statute of limitations. See Owens v. Okure,
*
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should not be published and is not precedent except under the limited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.
No. 08-30248
488 U.S. 235, 249-50 (1989); Long v. Simmons, 77 F.3d 878, 880 (5th Cir. 1996);
Davis v. Louisiana State Univ., 876 F.2d 412, 413 (5th Cir. 1989).
The record does not show that Gallegos’s failure to comply with the court’s
order 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).
Additionally, Gallegos 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 the officers who
participated in the allegedly illegal arrest. See Murphy v. Kellar, 950 F.2d 290,
293 (5th Cir. 1992). Consequently, the judgment of the district court is
REVERSED and the case is REMANDED to afford Gallegos the opportunity to
conduct discovery. See id.2