K.L.W. v. Child Protective Services ( 2020 )

Case: 19-20366 Document: 00515603055 Page: 1 Date Filed: 10/15/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 15, 2020
No. 19-20366
Lyle W. Cayce
Clerk
Brandy Brenay Charles,
Petitioner—Appellant,
versus
Child Protective Services; Behavioral Hospital of
Bellaire; Probate Court Judge of Harris County Nos. 2-
3; Herman Memorial Hospital; Judge of the 314th
District Court of Harris County, Texas; Harris
County,
Respondents—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:17-CV-1516
Before Willett, Ho, and Duncan, Circuit Judges.
Per Curiam:*
*
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opinion should not be published and is not precedent except under the limited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: 19-20366 Document: 00515603055 Page: 2 Date Filed: 10/15/2020
No. 19-20366
Brandy Brenay Charles was a civil detainee at the Behavioral Hospital
of Bellaire at the time she filed a 28 U.S.C. § 2241 petition in the district
court. The district court construed her petition as a 28 U.S.C. § 2254
petition and dismissed it without prejudice for failure to exhaust her state
court remedies, and she filed a notice of appeal. Her appeal was dismissed
for want of prosecution. Charles subsequently filed an emergency motion to
reinstate or reopen in the district court, which the district court construed as
arising under Federal Rule of Civil Procedure 60(b) and denied. She also
filed a motion for leave to file an original petition for writ of mandamus, which
the district court denied. Over one year later, Charles filed a document which
the district court construed as a notice of appeal. The district court denied
her motion for leave to proceed in forma pauperis (IFP) on appeal and
certified that her appeal was not taken in good faith. She moves for leave to
proceed IFP on appeal.
This court must examine the basis of its jurisdiction, sua sponte, if
necessary. See Donaldson v. Ducote, 373 F.3d 622, 624 (5th Cir. 2004). The
notice of appeal did not specify which order or judgment Charles was
appealing. Civil litigants, like Charles, have 30 days from the entry of
judgment to notice an appeal. See Hamer v. Neighborhood Hous. Servs. of
Chicago, 138 S. Ct. 13, 16-17 (2017) (holding that a timely notice of appeal in
a civil case is a jurisdictional prerequisite where, as here, the time limit is set
by statute); 28 U.S.C. § 2107(a); see also Archer v. Lynaugh, 821 F.2d 1094,
1096 (5th Cir. 1987) (stating that federal habeas proceedings are civil in
nature); Fed. R. App. P. 4(a)(1)(A). However, her notice of appeal was
not filed within 30 days of the entry of the district court’s judgment
dismissing her petition or the orders denying Charles’s subsequent motions.
Therefore, Charles’s appeal is DISMISSED for lack of jurisdiction. See
Hamer, 138 S. Ct. at 16-17. Her motions for leave to proceed IFP on appeal,
2
Case: 19-20366 Document: 00515603055 Page: 3 Date Filed: 10/15/2020
No. 19-20366
appointment of counsel, and a ruling on her motion for appointment of
counsel are also DENIED.
3