Welsh v. Unknown Male Shift Supr ( 2023 )

Case: 23-10171 Document: 00516923466 Page: 1 Date Filed: 10/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 6, 2023
No. 23-10171
Lyle W. Cayce
____________ Clerk
Lonnie Kade Welsh,
Plaintiff—Appellant,
versus
Unknown Male Shift Supervisor,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CV-255
______________________________
Before Higginbotham, Smith, and Elrod, Circuit Judges.
Per Curiam:*
Lonnie Welsh—a convicted sexually violent predator—filed a com-
plaint seeking money damages under 42 U.S.C. § 1983 for alleged violations
of his Fourteenth Amendment procedural due process rights.1 In his com-
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
1
Welsh also sued many other defendants for various events that allegedly occurred
when he was confined as a pretrial detainee at Lubbock County Detention Center. Those
other claims are not relevant for purposes of this appeal—the district court dismissed them
under 28 U.S.C. § 1915(e)(2)(B)(ii), and we affirmed. See Welsh v. Lubbock County, 70 F.4th
Case: 23-10171 Document: 00516923466 Page: 2 Date Filed: 10/06/2023
No. 23-10171
plaint and questionnaire responses, Welsh generally alleged that a male shift
supervisor—whom Welsh identified as “Sergeant K. Young”—placed him
in solitary confinement without a hearing to punish him based on his status
as a sexually violent predator (“SVP”). At the time of the alleged incident,
Lubbock County Detention Center (“LCDC”) did employ a correctional
officer named K. Young. But “K.” stands for Katherine, who most definitely
is not the complained-of male shift supervisor. Welsh agreed: After learning
of Young’s full name, Welsh clarified that the defendant was an “unknown
male officer.”
The district court granted Welsh’s motion for limited discovery to
identify the unnamed defendant. It first ordered Welsh to submit a physical
description of the officer,2 after which it directed the Lubbock County Sheriff
to identify any officers matching that description who were working around
the time of the incident or, if no officer could be identified, to produce photo-
graphs of officers fitting that description who were working around the same
time and may have spoken with Welsh. The Sheriff complied and produced
photographs of three officers.3
But Welsh maintains that the unnamed defendant is not among those
pictured. Speculating that the Sheriff “withheld” the picture of the un-
named defendant, Welsh demanded that the district court expand the scope
of discovery to include a photo of every individual who worked at LCDC dur-
ing the incident. On December 12, 2022, district court denied that request
_____________________
869 (5th Cir. 2023) (per curiam).
2
Welsh described the officer as a white male with brown hair, no visible scars, and
a peach and slightly tan complexion, between 5’7” and 5’10” in height, and in his mid-30s
to 40s.
3
The Sheriff, as part of his response, advised that he was unable to identify the real
defendant based on Welsh’s description.
2
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No. 23-10171
and dismissed, without prejudice, Welsh’s claim against the unnamed defen-
dant for failure to effect timely service. Fed. R. Civ. P. 4(m). Welsh filed
a motion for reconsideration on January 10, 2023, which the court denied on
February 19, 2023. His notice of appeal was filed on February 15, 2023. He
appeals the (1) dismissal of the unnamed defendant for failing to effect ser-
vice, (2) denial of additional discovery, and (3) denial of his Federal Rule of
Civil Procedure 59(e) motion.
As a threshold matter, we address jurisdiction. United States v.
Shkambi, 993 F.3d 388, 389 (5th Cir. 2021). In a civil case, the timely filing
of a notice of appeal is a jurisdictional requirement that cannot be waived or
forfeited. Bowles v. Russell, 551 U.S. 205, 214 (2007); Hamer v. Neighborhood
Hous. Servs. of Chi., 138 S. Ct. 13, 17 (2017). 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 Rule 59(e) motion must be timely filed to toll the deadline for filing
a notice of appeal. Fed. R. App. P. 4(a)(4)(A)(iv). The district court en-
tered final judgment on December 12, 2022. But Welsh’s Rule 59(e) motion
was not filed until January 10, 2023—29 days after entry of judgment. That
is one day too late.4 See Fed. R. Civ. P. 59(b) (“no later than 28 days after
the entry of judgment”). And because Welsh’s motion for reconsideration
was untimely, the 30-day period to file a notice of appeal began running the
day after entry of judgment on December 12. Fed. R. App. P. 4(a)(1)(A).
Because Welsh filed his notice of appeal 65 days after judgment, we lack
jurisdiction to hear this appeal.
We also note that Welsh “bears the burden of establishing this court’s
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4
That the district court considered and denied Welsh’s Rule 59(e) motion does
not alter our jurisdictional analysis. Washington v. Patlis, 868 F.2d 172, 174 (5th Cir. 1989).
3
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No. 23-10171
appellate jurisdiction over this appeal.” Thibodeaux v. Vamos Oil & Gas Co.,
487 F.3d 288, 293 (5th Cir. 2007) (quoting Acoustic Sys., Inc. v. Wenger Corp.,
207 F.3d 287, 289 (5th Cir. 2000)). Yet, in his briefing, Welsh does not assert
that this court has jurisdiction.5 See Fed. R. App. P. 28(a)(4)(A)–(D)
(“The appellant’s brief must contain . . . a jurisdictional statement, including
. . . the basis for the court of appeals’ jurisdiction.”). And while we do “lib-
erally construe the briefs of pro se litigants and apply less stringent standards
to parties proceeding pro se than to parties represented by counsel, pro se
parties must still brief the issues and reasonably comply with the standards of
Rule 28.” Grant v. Cuellar, 59 F.3d 523, 524 (5th Cir. 1995).
For the foregoing reasons, we DISMISS the appeal for want of
jurisdiction.
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5
Welsh never claims any exception applies to render his Rule 59(e) motion timely.
Regardless, none seems to apply. Although a panel applied the prison mailbox rule to civilly
confined litigants, Brown v. Taylor, 829 F.3d 365 (5th Cir. 2016), that holding does not bind
this case, see id. at 368–69 (applying law of the case doctrine). It is therefore unnecessary
to remand for the limited purpose of making factual findings about Welsh’s ability to file
pleadings at the time he filed his Rule 59(e) motion.
4