Aaron Martin v. George Zoley

Case: 14-10682 Document: 00513048394 Page: 1 Date Filed: 05/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10682 FILED
May 19, 2015
Lyle W. Cayce
AARON MARTIN, ET AL., Clerk
Plaintiffs
v.
GEORGE ZOLEY, CEO, GEO Group Incorporated, ET AL.,
Defendants
--------------------------------------------
LEROY LIVINGSTON, JR.,
Plaintiff-Appellant
v.
LIEUTENANT FREDERIC TUNAITIS, Sanders Estes Unit; DANIEL
SIMPSON, Sanders Estes Unit; MARLENA S FRIDDLE, C.O., Sanders Estes
Unit; KERRI S HOCKINGS, LVN, Medical Department Sanders Estes Unit,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CV-490
USDC No. 3:08-CV-1185
Case: 14-10682 Document: 00513048394 Page: 2 Date Filed: 05/19/2015
No. 14-10682
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Leroy Livingston, Jr., Texas prisoner # 01888406, moves for leave to
proceed in forma pauperis (IFP) on appeal from the district court’s dismissal of
his claims in a consolidated 42 U.S.C. § 1983 civil rights suit, which the district
court ultimately denied after granting the defendants’ motion for summary
judgment. This court has a duty to examine the basis of its jurisdiction, sua
sponte, if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A
timely notice of appeal is a jurisdictional requirement in a civil case. Bowles
v. Russell, 551 U.S. 205, 213-14 (2007).
Federal Rule of Appellate Procedure 4(a)(1)(A) requires that the notice
of appeal in a civil action be filed within 30 days of entry of the judgment or
order from which the appeal is taken. Moreover, “a judgment entered pursuant
to Rule 54(b) [of the Federal Rules of Civil Procedure] is a final judgment, and
an appeal must be taken within thirty days after its entry.” Smith v. Mine
Safety Appliances Co., 691 F.2d 724, 725 (5th Cir. 1982). Livingston’s notice of
appeal was untimely because it was filed over five years after the district court
dismissed his claims and almost two years after the district court granted
summary judgment to the defendants. See FED. R. APP. P. 4(a)(1)(A).
Additionally, neither Rule 4(a)(5) nor Rule 4(a)(6) assists Livingston with
respect to the untimeliness of his notice of appeal. Given the absence of a
timely notice of appeal in this case, this appeal must be dismissed for lack of
jurisdiction.
APPEAL DISMISSED; MOTION DENIED.
* 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.
2