Max-George v. Myrick ( 2022 )

Case: 21-20281 Document: 00516383818 Page: 1 Date Filed: 07/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 6, 2022
No. 21-20281 Lyle W. Cayce
Summary Calendar Clerk
Cecil Max-George,
Plaintiff—Appellant,
versus
Officer C. A. Myrick; Officer J. Mejia;
Officer L. Matthews; City of Houston,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:17-CV-2264
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Cecil Max-George, Texas prisoner #1649987, filed a pro se civil rights
lawsuit under 42 U.S.C. § 1983 and Texas tort law. After the district court
dismissed, Max-George filed two motions to reopen the time to file an appeal
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited circum-
stances set forth in 5th Circuit Rule 47.5.4.
Case: 21-20281 Document: 00516383818 Page: 2 Date Filed: 07/06/2022
No. 21-20281
from the dismissal and a motion per Federal Rule of Civil Procedure 60(b).
The district court denied Rule 60(b) relief and dismissed the motions to
reopen for want of jurisdiction because the instant appeal was pending.
Max-George’s notice of appeal from the denial of his Rule 60(b)
motion does not bring up the underlying judgment for appellate review. See
Bailey v. Cain, 609 F.3d 763, 767 (5th Cir. 2010). Even if an appeal were
pending from the dismissal of Max-George’s § 1983 action, rulings on his
motions to reopen would assist us in determining our jurisdiction to consider
the dismissal. See Ross v. Marshall, 426 F.3d 745, 751 (5th Cir. 2005).
Accordingly, the district court’s September 20, 2021, order dismissing Max-
George’s motions to reopen for want of jurisdiction is VACATED.
We REMAND for the limited purpose of permitting the district
court to determine whether the time to file an appeal from the October 28,
2020, judgment should be reopened under Federal Rule of Appellate Proce-
dure 4(a)(6). The district court is directed to return the case to this court for
further proceedings or dismissal, as appropriate, once the ruling has been
made.
2