Gary Kennedy v. Rick Thaler, Director

431 F. App'x 283

Opinion

PER CURIAM: *

Gary L. Kennedy, Texas prisoner # 610571, appeals the district court’s judgment dismissing his 42 U.S.C. § 1983 suit as frivolous. Our review of the record, however, shows that it is yet not appropriate for us to consider his arguments concerning the dismissal of his suit.

Regardless whether the parties address the issue, this court must always be cognizant of the question whether it has jurisdiction to consider an action. Hernandez v. Thaler, 630 F.3d 420, 424 & n. 11 (5th Cir.2011). Within 28 days of entry of judgment, Kennedy filed a second amended complaint that is best classed as arising under Federal Rule of Civil Procedure 59(e) and that renders his notice of appeal ineffective until the district court rules on it. Fed. R.App. P. 4(a)(4)(B)(i). Accordingly, this case must be remanded, and the record returned, so that the district court may rule on Kennedy’s postjudgment motion “as expeditiously as possible, consistent with a just and fair disposition thereof.” See Burt v. Ware, 14 F.3d 256, 261 (5th Cir.1994). We retain jurisdiction over the appeal except for the purposes of the limited remand. Kennedy’s appeal shall be held in abeyance until his notice of appeal is effective. The clerk of this court is instructed to process the appeal immediately upon the return of this case from the district court.

LIMITED REMAND; APPEAL HELD IN ABEYANCE.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.