Crowell v. Sollie

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 4, 2003
• Docket: 02-60065
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-60065 Summary Calendar

KELVIN CROWELL,

Plaintiff-Appellant,

versus

BILLY SOLLIE, Sheriff, Lauderdale County Jail; GILBERT PINTO, DR.; MARIA SERAPIO; Director; MICHAEL SUMNER, Captain; REGINA REED, Correctional Officer at SMCI; JAMES ANDERSON, Commissioner, MDOC,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:00-CV-18-PG -------------------- February 3, 2003

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Kelvin Crowell appeals the grant of summary judgment for

Sheriff Billy Sollie on his 42 U.S.C. § 1983 suit and the jury

verdict dismissing his claims against Dr. Gilbert Pinto, Dr.

Maria Serapio, and Regina Reed. He also appeals the grant of

judgment as a matter of law to Captain Michael Sumner and

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-60065 -2-

Commissioner James Anderson and the denial of his new-trial

motion.

Crowell’s new-trial motion was filed well outside the ten-

day period to file such a motion under FED. R. CIV. P. 59(e).

The ten-day period for filing a Rule 59 motion is jurisdictional

and cannot be extended by the district court. Gribble v. Harris,

625 F.2d 1173, 1174 (5th Cir. 1980); see also Fairley v. Jones,

824 F.2d 440, 442 (5th Cir. 1987); FED. R. CIV. P. 6(b).

Therefore, despite Crowell’s request for an extension of time to

file his motion, his Rule 59 motion was untimely, making his

notice of appeal insufficient to confer jurisdiction over an

appeal of the underlying judgment. See Gribble v. Harris, 625

F.2d 1173, 1174 (5th Cir. 1980); see also Fairley v. Jones, 824

F.2d 440, 442 (5th Cir. 1987); FED. R. CIV. P. 6(b); FED. R. APP. P.

4(a)(4)(A)(v).

Crowell’s new-trial motion may be construed as a motion

under FED. R. CIV. P. 60(b), but the denial of a Rule 60(b) motion

does not bring up the underlying judgment for review. See In re

Ta Chi Navigation (Panama) Corp., S.A., 728 F.2d 699, 703 (5th

Cir. 1984). Therefore, the only argument that Crowell raises

here over which this court has jurisdiction is the grant of

summary judgment to Sollie. We review the denial of a Rule 60(b)

motion for abuse of discretion. See Travelers Ins. Co. v.

Liljeberg Enter., Inc., 38 F.3d 1404, 1408 (5th Cir. 1994). No. 02-60065 -3-

Crowell argues that summary judgment should not have been

granted for Sollie because there were fact issues in dispute.

The record demonstrates that Sollie met his burden of showing an

absence of evidence to support Crowell’s case. Sollie’s

documentation showed that Crowell was sent to an optometrist a

week after requesting an eye appointment and that the Lauderdale

County Detention Facility was not aware that Crowell needed

further evaluation until after Crowell had been transferred.

Crowell did not go beyond the pleadings and designate

specific facts showing that there was a genuine issue of material

fact for trial with regard to deliberate indifference to his

serious medical needs. See Celotex Corp. v. Catrett, 477 U.S.

317, 322-27 (1986). Moreover, Crowell’s conclusional assertion

that Sollie was responsible for alleged constitutional violations

does not provide a basis for a civil rights action. See Oliver

v. Collins, 904 F.2d 278, 281 (5th Cir. 1990). Consequently, the

magistrate judge did not abuse his discretion in not granting

Crowell’s motion for a new trial, and the denial of that motion

is AFFIRMED.

AFFIRMED.