Resendez v. Abbott

Case: 20-50647 Document: 00515857811 Page: 1 Date Filed: 05/11/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 11, 2021
No. 20-50647
Lyle W. Cayce
Clerk
Rudolph Resendez, Jr.,
Plaintiff—Appellant,
versus
Greg Abbott, Governor of the State of Texas; Bobby Lumpkin,
Director, Texas Department of Criminal Justice, Correctional Institutions
Division; Phonso J. Rayford, Warden of Connally Unit; Vernet
Davis, Major of Connally Unit; Larissa Wysocki, Major of Connally
Unit,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:20-CV-833
Before Jones, Costa, and Wilson, 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opinion should not be published and is not precedent except under the limited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: 20-50647 Document: 00515857811 Page: 2 Date Filed: 05/11/2021
No. 20-50647
Rudolph Resendez, Jr., Texas prisoner # 896768, filed a 42 U.S.C.
§ 1983 complaint that the district court dismissed without prejudice under
28 U.S.C. § 1915(g). Resendez then filed a document that he entitled,
“Notice of Appeal and or to Reinstate for Rule 59 New Trial.”
“This [c]ourt 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 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) (“notice
of appeal must specifically indicate the litigant’s intent to seek appellate
review”).
A motion for reconsideration that seeks an appeal alternatively to
postconviction relief does not clearly indicate the intent to appeal. See
Mosley, 813 F.2d at 660. Because the primary relief Resendez sought was
relief in the district court under Federal Rule of Civil Procedure 59(e), he
referenced an appeal only as an alternative, and he did not indicate that he
was seeking an appeal in the Fifth Circuit, his motion was insufficient to
constitute a notice of appeal. See id.; Fed. R. App. P. 3(c)(1)(C).
Although Resendez later filed a motion for leave to proceed in forma
pauperis that could 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), it cannot become effective
as such until the district court rules on the outstanding Rule 59(e) motion, see
Fed. R. App. P. 4(a)(4)(B)(i); Burt v. Ware, 14 F.3d 256, 258 (5th Cir.
1994). We therefore REMAND this case to the district court for the limited
purpose of ruling on the pending Rule 59(e) motion. We hold the appeal in
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Case: 20-50647 Document: 00515857811 Page: 3 Date Filed: 05/11/2021
No. 20-50647
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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