Jimenez v. Lumpkin ( 2021 )

Case: 20-10221 Document: 00515931829 Page: 1 Date Filed: 07/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 9, 2021
No. 20-10221
Lyle W. Cayce
Summary Calendar
Clerk
Salvador Jimenez,
Plaintiff—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:17-CV-139
Before King, Smith, and Higginson, Circuit Judges.
Per Curiam:*
Salvador Jimenez, Texas prisoner # 870962, filed a 42 U.S.C. § 1983complaint that the district court dismissed as frivolous pursuant to 28 U.S.C.
*
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opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 20-10221 Document: 00515931829 Page: 2 Date Filed: 07/09/2021
No. 20-10221
§ 1915A, 28 U.S.C. § 1915(e)(2), and 42 U.S.C. § 1997e(a). Jimenez then
filed a document he entitled, “Motion for Objection to the Judge’s Report.”
“This Court must examine the basis of its jurisdiction, on its own
motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (per
curiam). A timely “notice of appeal in a civil case is a jurisdictional
requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). “A document
filed in the period prescribed by Fed. R. App. P. 4(a)(1) for taking an appeal
should be construed as a notice of appeal if the document clearly evinces the
party’s intent to appeal.” Mosley, 813 F.2d at 660 (internal quotations marks
and citations omitted); see also Smith v. Barry, 502 U.S. 244, 248 (1992) (“a
notice of appeal must specifically indicate the litigant’s intent to seek
appellate review”).
A motion for reconsideration that seeks an appeal alternatively to
postjudgment relief does not clearly indicate the intent to appeal. Mosley, 813
F.2d at 660. Because Jimenez sought reconsideration after discovery as his
primary request and he did not indicate that he was seeking an appeal in the
Fifth Circuit, the pleading was insufficient to constitute a notice of appeal.
See id.; Fed. R. App. P. 3(c)(1)(C). Rather, because the pleading seeks
reconsideration and was filed within 28 days of the judgment, it is more
properly construed as a motion under Federal Rule of Civil Procedure 59(e).
See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994).
Although Jimenez later filed a motion for leave to proceed in forma
pauperis that can be construed as a notice of appeal, see Fischer v. U.S. Dep’t
of Just., 759 F.2d 461, 464 & n.2 (5th Cir. 1985) (per curiam), that pleading
cannot become effective as a notice of appeal until the district court rules on
the outstanding Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(B)(i);
Lawson v. Stephens, 900 F.3d 715, 717 & n.3 (5th Cir. 2018). We therefore
REMAND this case to the district court for the limited purpose of ruling on
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Case: 20-10221 Document: 00515931829 Page: 3 Date Filed: 07/09/2021
No. 20-10221
the pending Rule 59(e) motion “as expeditiously as possible, consistent with
a just and fair disposition.” See Lawson, 900 F.3d at 721 (internal quotation
marks and citation omitted). We hold the appeal in abeyance until the notice
of appeal becomes effective, and we retain jurisdiction over the appeal except
for the purposes of the limited remand.
LIMITED REMAND; APPEAL HELD IN ABEYANCE.
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