Donnelly v. Clemens

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 27, 2004
• Docket: 03-60478
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS February 27, 2004

FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 03-60478 Summary Calendar

LONNIE DONNELLY,

Plaintiff-Appellant,

versus

WES CLEMENS; AMBER DARBY; LINDA EDWARDS; DIANE FOY,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:02-CV-501-S --------------------

Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.

PER CURIAM:*

Lonnie Donnelly, Mississippi prisoner # K1304, appeals the

magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983

action alleging denial of access to the courts. This court must

examine the basis of its jurisdiction on its own motion if

necessary.1 Under FED. R. APP. P. 4(a)(4), the filing of a timely

FED. R. CIV. P. 59(e) motion renders a notice of appeal ineffective

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). No. 03-60478 -2-

until an order is entered disposing of the motion. A motion

requesting reconsideration of a judgment is treated as a FED.

R. CIV. P. 59(e) motion for purposes of FED. R. APP. P. 4(a)(4),

regardless of the label applied to the motion, if it is made within

the ten-day limit for such motions.2

Although styled as “objections” to the judgment, Donnelly’s

postjudgment filing challenges the magistrate judge’s dismissal of

his complaint. Accordingly, despite the label affixed by this pro

se litigant, the postjudgment filing must be regarded as a FED. R.

CIV. P. 59(e) motion because it was filed within ten days of the

entry of judgment.3

Accordingly, this case must be remanded, and the record

returned to the magistrate judge, so that the magistrate judge may

rule on Donnelly’s FED. R. CIV. P. 59(e) motion as expeditiously as

possible, consistent with a just and fair disposition thereof.4

This court retains jurisdiction over the appeal except for the

purposes of the limited remand stated above.

LIMITED REMAND.

2 See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986)(en banc). 3 See FED. R. CIV. P. 6(a); see also Harcon Barge, 784 F.2d at 667. 4 See Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).