Paul Evans v. Brenda Sims ( 2013 )

Case: 12-60563 Document: 00512169292 Page: 1 Date Filed: 03/08/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 8, 2013
No. 12-60563
Summary Calendar Lyle W. Cayce
Clerk
PAUL EVANS,
Plaintiff-Appellant
v.
BRENDA SIMS; MARSHALL TURNER; RONALD KING,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:11-CV-7
Before JOLLY, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Paul Evans, Mississippi prisoner # K9280, brought this civil action against
the defendant prison authorities, Brenda Sims, Marshall Turner, and Ron King,
alleging that they violated his federal constitutional rights when they strip-
searched him. See 42 U.S.C. § 1983. The district court granted summary
judgment to the defendants on April 19, 2012. Evans moved for reconsideration
under Federal Rule of Civil Procedure 59(e) on May 7, 2012. The district court
overruled that motion on June 7, 2012. According to his certificate of service,
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-60563 Document: 00512169292 Page: 2 Date Filed: 03/08/2013
No. 12-60563
Evans filed a notice of appeal on July 11, 2012, at the earliest. On that same
date, Evans moved for permission to proceed in forma pauperis (IFP) on appeal.
The district court denied the IFP motion, stating that the period in which to file
an appeal had expired. The district court determined that Evans’s appeal was
not in good faith under 28 U.S.C. § 1915(a)(3).
Evans now moves in this court for leave from to appeal IFP. As a
threshold matter, we must determine whether Evans filed a timely notice of
appeal. See Bowles v. Russell, 551 U.S. 205, 206-07 (2007). Evans had 30 days
after April 19, 2012, to file a notice of appeal from the judgment dismissing his
complaint. See FED. R. APP. P. 4(a)(1)(A); FED. R. CIV. P. 6(a). He instead filed
a timely motion for reconsideration under Federal Rule of Civil Procedure 59(e),
which tolled the running of time for filing a notice of appeal from the judgment
of dismissal. See FED. R. CIV. P. 4(a)(4)(A); Fischer v. United States, 759 F.2d
461, 464 (5th Cir. 1985). Therefore, the 30-day period for filing a notice of appeal
from the April judgment of dismissal did not begin to run until the district court
denied Evans’s Rule 59(e) motion on June 7, 2012. See FED. R. CIV. P. 4(a)(4)(A).
The notice of appeal filed by Evans on July 11, 2012, was untimely.
Because the district court entered its order denying reconsideration on June 7,
2012, Evans was required to file his notice of appeal no later than Monday, July
9, 2012. See FED. R. CIV. P. 6(a)(1). Evans fails to provide either argument or
authorities to show that his notice of appeal was timely filed. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). We have no jurisdiction.
Consequently, we dismiss his appeal for lack of jurisdiction. See Bowles, 551
U.S. at 206-07.
IFP MOTION DENIED; APPEAL DISMISSED FOR LACK OF
JURISDICTION.
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