Stevenson v. Anderson , 139 F. App'x 603 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 9, 2005
Charles R. Fulbruge III
Clerk
No. 04-10633
Summary Calendar
BILLY N. STEVENSON,
Plaintiff-Counter Defendant-
Appellant,
versus
DON ANDERSON, Sheriff; NFN SNEED, Lieutenant;
NFN LYNN, Medical Officer,
Defendants-Counter Claimants-
Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:00-CV-2157-N
--------------------
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Billy N. Stevenson filed a civil rights complaint, alleging
that, while incarcerated, he was injured and was denied proper
medical treatment. This court must examine the basis of its
jurisdiction on its own motion if necessary. See Mosley v.
Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely filed notice
of appeal is a jurisdictional prerequisite to appellate review.
Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).
*
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this opinion should not be published and is not precedent except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. 04-10633
-2-
By judgment entered on March 23, 2004, the district court
dismissed Stevenson’s complaint. Stevenson’s notice of appeal
had to be filed within 30 days of the entry of judgment. FED.
R. APP. P. 4(a)(1)(A). Stevenson, however, filed his notice of
appeal the end of May 2004, more than 30 days after the entry of
judgment.
Stevenson’s notice of appeal, however, could be construed as
a motion to reopen the appeal period. Rule 4(a)(6), FED. R. APP.
P., allows the district court to reopen the time to file an
appeal if: (1) a motion is filed within 180 days of the entry of
judgment or within 7 days of the receipt of notice of the entry
of judgment, whichever is earlier; (2) the district court finds
that the party was entitled to notice of the entry of judgment
and did not receive such notice within 21 days of the judgment’s
entry; and (3) the district court finds that no party would be
prejudiced if the time period was reopened.
Stevenson received written notice of the entry of the
district court’s March 23, 2004, judgment on May 13, 2004, which
was not within 21 days of the judgment’s entry. Stevenson’s
motion was stamped filed May 26, 2004, which was within 180 days
of the entry of the district court’s judgment. Because Stevenson
received notice of the judgment’s entry on May 13, 2004,
Stevenson had until May 24, 2004, or seven days, to file his
motion to reopen the appeal period. See FED. R. APP. P. 26(a).
Although the prison mailbox rule applies to Stevenson, his motion
No. 04-10633
-3-
does not indicate when he placed it in the prison mail system.
See R. 1, 273-75; Spotville v. Cain, 149 F.3d 374, 376-78 (5th
Cir. 1998) (under prison mailbox rule, pro se prisoner is deemed
to have filed document in federal court when it is deposited in
prison mail system). Nevertheless, because Stevenson’s motion
was filed only two days late, his motion is presumed to have been
filed timely. See United States v. Young, 966 F.2d 164, 165 (5th
Cir. 1992) (pro se prisoner entitled to presumption that two-
days-late notice of appeal was timely delivered to prison
authorities for mailing and thus timely filed under prison
mailbox rule).
Because Stevenson’s motion is timely, the matter must be
remanded to the district court to determine whether to re-open the
time for filing the notice of appeal pursuant to FED. R. APP.
P. 4(a)(6). Upon making this determination, the district court
should return the case to this court for further proceedings, or
dismissal, as may be appropriate.
REMANDED.