Rhondy Davis, Sr. v. E. Laberneuer

Case: 15-50136 Document: 00513532979 Page: 1 Date Filed: 06/03/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50136 FILED
Summary Calendar June 3, 2016
Lyle W. Cayce
Clerk
RHONDY JAMES DAVIS, SR.,
Plaintiff-Appellant
v.
E. LABERNEUER; CAPTAIN L. BROWN; L. GLATT; SERGEANT L.
JOHNSON,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:14-CV-835
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Rhondy James Davis, Sr., Texas prisoner # 1934352, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint as frivolous pursuant to
28 U.S.C. § 1915(e)(2). He also moves for appointed counsel. We must examine
the basis of our own jurisdiction, sua sponte, if necessary. See Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is a jurisdictional
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50136 Document: 00513532979 Page: 2 Date Filed: 06/03/2016
No. 15-50136
requirement in a civil case. Bowles v. Russell, 551 U.S. 205, 214 (2007). Davis’s
appeal is not timely for several reasons.
Because Davis’s notice of appeal was filed more than 30 days from the
December 17, 2014, entry of the order denying his first motion to substantiate
his claims, it is untimely as to both the district court’s judgment of dismissal
and its denial of Davis’s first postjudgment motion. See Charles L.M. v.
Northeast Indep. Sch. Dist., 884 F.2d 869, 870-71 (5th Cir. 1989); FED. R. APP.
P. 4(a)(1)(A), (a)(4)(A), (a)(5)(A). Given the absence of a timely notice of appeal
in this case, this appeal must be dismissed as to the original judgment and the
December 17 order for lack of jurisdiction. See Bowles, 551 U.S. at 214.
Davis’s notice of appeal indicates that it is from a subsequent order
(Docket No. 19) entered January 9, 2015, in which the district court barred
Davis from filing anything further in the case besides a notice of appeal. As to
that order, the notice of appeal appears to have been timely mailed under
FRAP 25(a)(2)(c). 1 However, Davis failed to brief any alleged error in this
order, so any such error is deemed abandoned. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).
APPEAL DISMISSED in part; AFFIRMED in part. MOTION DENIED.
1Although Davis did not state expressly when he placed the notice of appeal (filed on
February 13, 2015), dated January 25, 2015, in the prison mail system, the accompanying
envelope bears a postmark of February 3, 2015, which would make it timely.
2