Willis Wiley v. Rescar Industries, Inc.

Case: 13-20645 Document: 00512712449 Page: 1 Date Filed: 07/25/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 13-20645 FILED
Summary Calendar July 25, 2014
Lyle W. Cayce
Clerk
WILLIS FLOYD WILEY,
Plaintiff-Appellant
v.
RESCAR INDUSTRIES, INCORPORATED,
Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-4434
Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Willis Floyd Wiley filed a civil rights complaint against Rescar
Industries, Inc. (Rescar) seeking damages for the wrongful death of his father,
Lee Otis Ryans, while working for Rescar. Wiley alleged that Rescar violated
Occupational Safety and Health Act (OSHA) regulations and his father’s
constitutional rights under 42 U.S. C. § 1983. The district court dismissed the
complaint because Wiley had failed to state a claim on which relief could be
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20645 Document: 00512712449 Page: 2 Date Filed: 07/25/2014
No. 13-20645
granted. The district court found that Rescar was not a state actor subject to
suit under § 1983, that OSHA provides no private cause of action, and that
Wiley had failed to establish that he had standing to sue for injuries to Ryans.
Wiley appeals the district court’s judgment dismissing his complaint. A
timely notice of appeal is a prerequisite to the exercise of appellate jurisdiction
in a civil case. Bowles v. Russell, 551 U.S. 205, 213-14 (2007). The notice of
appeal in a civil action must be filed within 30 days of entry of the judgment
or order from which the appeal is taken. FED. R. APP. P. 4(a)(1)(A). The district
court entered its final judgment on February 11, 2013. Wiley did not file a
notice of appeal within that period. Accordingly, this court lacks jurisdiction
to review his arguments relative to the judgment entered on February 11,
2013. See FED. R. APP. P. 4(a)(1); Bowles, 551 U.S. at 213-14.
Wiley’s October 28, 2013 notice of appeal is timely as to the district
court’s October 25, 2013, order denying post judgment relief pursuant to
Federal Rule of Civil Procedure 60(b). See Harcon Barge Co., Inc. v. D & G
Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc). We review the
denial of a Rule 60(b) motion for an abuse of discretion. Bailey v. Cain, 609
F.3d 763, 767 (5th Cir. 2010). On appeal, Wiley does not address the standard
of review for Rule 60(b) denials, but simply attacks the dismissal of his
complaint by arguing the merits of his underlying claims. Wiley has effectively
abandoned all available arguments on appeal. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993); see also Brinkmann v. Dallas Cnty. Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
AFFIRMED.
2