Jason Hendrix v. Lorie Davis, Director , 694 F. App'x 358 ( 2017 )

Case: 16-40468 Document: 00514108859 Page: 1 Date Filed: 08/09/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-40468
Fifth Circuit
FILED
Summary Calendar August 9, 2017
Lyle W. Cayce
JASON HENDRIX, Clerk
Plaintiff-Appellant
v.
LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION; CAPTAIN
TIARRA; LIEUTENANT ALSOBROOK; OFFICER HARRIS; UNKNOWN
PARTY, J-Wing Officer; UNKNOWN PARTY, J-Wing Control Pickett Officer;
UNKNOWN PARTY, J-Wing Hallway Officer,
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:15-CV-1015
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Jason Hendrix, Texas prisoner # 1838519, filed a 42 U.S.C. § 1983
complaint against various prison officials and officers. The district court
granted a motion for partial dismissal of the claims against the defendants in
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40468
their official capacities and the claims against the Director of the Texas
Department of Criminal Justice, Correctional Institutions Division (TDCJ-ID).
Hendrix filed a notice of appeal. Several months later, the district court
granted a motion for summary judgment filed by the remaining defendants,
which argued that Hendrix had filed his complaint before exhausting his
administrative remedies. Hendrix did not file a new notice of appeal.
We must examine the basis of our jurisdiction, sua sponte, if necessary.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). “[T]he timely filing of a
notice of appeal in a civil case is a jurisdictional requirement.” Bowles v.
Russell, 551 U.S. 205, 214 (2007). Hendrix’s notice of appeal from the order of
partial dismissal was premature. See FED. R. CIV. P. 54(b). However, because
the district court could have certified that the order of dismissal was
appealable and it subsequently entered a final judgment, this notice of appeal
confers appellate jurisdiction over the partial dismissal. See, e.g., Boudreaux
v. Swift Transp. Co., Inc., 402 F.3d 536, 539 n.1 (5th Cir. 2005).
The district court’s partial dismissal order, which was based on Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6), is reviewed de novo. See Raj v.
Louisiana State Univ., 714 F.3d 322, 327 (5th Cir. 2013); Atchafalaya
Basinkeeper v. Chustz, 682 F.3d 356, 357 (5th Cir. 2012). We conclude that the
district court did not err. Because the defendants are all employees of TDCJ-
ID, their official acts fall within the scope and immunity of the Eleventh
Amendment. See Mayfield v. Texas Dep’t of Criminal Justice, 529 F.3d 599,
604 (5th Cir. 2008). The district court also did not err by dismissing Hendrix’s
claims against the TDCJ-ID director. See Thompkins v. Belt, 828 F.2d 298,
303-04 (5th Cir. 1987); Spiller v. City of Texas City, Police Dept., 130 F.3d 162,
167 (5th Cir. 1997).
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No. 16-40468
Hendrix did not file a notice of appeal from the subsequent grant of
summary judgment, which dismissed his remaining individual capacity
claims, or the entry of final judgment. His prior notice of appeal specified that
it was appealing from the district court’s partial dismissal. See FED. R. APP. P.
3(c)(1). Because a timely and valid notice of appeal is a jurisdictional
requirement in a civil case, see Bowles, 551 U.S. at 214, we do not have
jurisdiction to consider the dismissal of these claims.
Finally, Hendrix also has moved for the appointment of counsel and the
appointment of an investigator. A court is not required to appoint counsel for
an indigent plaintiff in a civil suit unless there exist exceptional circumstances
warranting such an appointment. Ulmer v. Chancellor, 691 F.2d 209, 212-13
(5th Cir. 1982). For the reasons discussed above, we conclude that such
exceptional circumstances do not exist in this case.
MOTIONS DENIED; AFFIRMED IN PART; DISMISSED IN PART.
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