Albert Harris v. Marsha Moberly , 642 F. App'x 386 ( 2016 )

Case: 15-20075 Document: 00513438364 Page: 1 Date Filed: 03/24/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-20075
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
March 24, 2016
ALBERT HARRIS,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
MARSHA MOBERLY; CHARLES SHIPMAN; JAMES LAFAVERS,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:15-CV-101
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Albert Harris, Texas inmate # 677922, appeals the dismissal of his 42
U.S.C. § 1983 complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) as frivolous and
for failure to state a claim on which relief could be granted.
This court must examine the basis of its jurisdiction and may do so sua
sponte, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
Regardless of the label attached to it, a motion challenging the correctness of
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20075 Document: 00513438364 Page: 2 Date Filed: 03/24/2016
No. 15-20075
a judgment is a motion filed pursuant to Rule 59(e) of the Federal Rules of Civil
Procedure if the litigant submits it within 28 days after the entry of the
judgment. Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); Harcon
Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en
banc); FED. R. CIV. P. 59(e). Where a litigant files a timely Rule 59(e) motion
and a notice of appeal, the notice of appeal does not become effective until the
entry of the order disposing of the motion. FED. R. APP. P. 4(a)(4)(A)(iv), (B)(i);
Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).
Harris filed a postjudgment motion challenging the dismissal of his
complaint within 28 days of the district court’s entry of judgment, which is
properly construed as a Rule 59(e) motion. See Mangieri, 29 F.3d at 1015 n.5;
Harcon Barge Co., 784 F.2d at 668. Because the district court has not decided
the Rule 59(e) motion, this appeal is premature. See FED. R. APP. P.
4(a)(4)(B)(i). The case is, therefore, remanded to the district court for the
limited purpose of allowing the court to rule on Harris’s pending Rule 59(e)
motion. Harris’s appeal is held in abeyance.
REMANDED FOR LIMITED PURPOSE; APPEAL HELD IN
ABEYANCE.
2