Mark Schwarzer v. Dale Wainwright ( 2020 )

Case: 19-41011 Document: 00515659372 Page: 1 Date Filed: 12/03/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 3, 2020
No. 19-41011
Lyle W. Cayce
Summary Calendar Clerk
Mark Cliff Schwarzer,
Plaintiff—Appellant,
versus
Dale Wainwright, Chairman of the Board of Criminal
Justice; Robert G. Beard, Jr., Former Warden of
Stevenson Unit; Pamela R. Mendez-Banda, Unit
Mailroom Employee; Bryan Collier, Executive
Director, Texas Department of Criminal Justice;
Jennifer Smith, DRC Program Supervisor,
Defendants—Appellees.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 6:18-CV-34
Before Higginbotham, Jones, and Costa, 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opinion should not be published and is not precedent except under the limited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: 19-41011 Document: 00515659372 Page: 2 Date Filed: 12/03/2020
No. 19-41011
Mark Cliff Schwarzer, Texas prisoner # 1433741, appeals the dismissal
of his 42 U.S.C. § 1983 complaint and the denial of his Federal Rule of Civil
Procedure 59(e) motion to alter judgment. However, the issues Schwarzer
raises on appeal concern the dismissal of his § 1983 action rather than the
denial of his Rule 59(e) motion. As a threshold matter, 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). A timely notice of appeal in a
civil case is a jurisdictional prerequisite. See Hamer v. Neighborhood Hous.
Servs., 138 S. Ct. 13, 17 (2017).
Schwarzer’s Rule 59(e) motion was entered on the district court’s
docket on November 4, 2019, which was after the October 30, 2019, deadline
for filing the motion. See Fed. R. Civ. P. 59(e). However, under the
prison mailbox rule, Schwarzer’s Rule 59(e) motion is deemed filed on the
date it was placed in the prison’s mail system. See Stoot v. Cain, 570 F.3d
669, 671 (5th Cir. 2009). The motion was dated October 30, 2019, but the
record does not reveal when Schwarzer deposited it in the mail. It is
therefore unclear whether his Rule 59(e) motion was timely filed. As a result,
on the present record, this court cannot determine whether it has jurisdiction
to review the underlying dismissal of Schwarzer’s § 1983 complaint. See
Fed. R. App. P. 4(a)(4)(A). Accordingly, we hold the appeal in abeyance
and remand for the limited purpose of determining when Schwarzer placed
his Rule 59(e) motion in the prison mail system. See Thompson v. Montgomery,
853 F.2d 287, 288 (5th Cir. 1988).
APPEAL HELD IN ABEYANCE; LIMITED REMAND.
2