Geier v. Williams

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 31, 2002
• Docket: 01-11307
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-11307 Summary Calendar

LEO FREDICK GEIER,

Plaintiff-Appellant,

versus

JOHNNY WILLIAMS, Etc.; ET AL.,

Defendants,

BILL WILEY, Deputy, Hood County Sheriff’s Department; DAN THOMAS, Deputy, Hood County Sheriff’s Department,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas (4:00-CV-1523-A) -------------------- May 30, 2002

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Leo Fredick Geier, Texas prisoner #

915221, appeals the summary judgment dismissal of his 42 U.S.C. §

1983 complaint. He contends that the district court erred in

determining that his claims were barred by the doctrine of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. collateral estoppel, because the defendant police officers were not

parties or in privity with a party to his criminal proceedings.

The district court was without authority to construe Geier’s

motion for reconsideration as a motion under FED. R. APP. P. 4(a)(4)

which suspended the time in which to file a notice of appeal,

because the motion was filed more than 10 days after entry of

judgment. Therefore, his notice of appeal was not timely filed.

See FED. R. CIV. P. 6(b); Fairley v. Jones, 824 F.2d 440, 442 (5th

Cir. 1987). This makes jurisdiction an issue. See United States

v. Alvarez, 210 F.3d 309, 310 (5th Cir. 2000).

The district court denied Geier’s motion for extension of time

in which to file a notice of appeal as moot without making a

determination whether he could show “excusable neglect” or “good

cause.” See FED. R. APP. P. 4(a)(5)(A)(I), (ii). We choose not to

remand the case for such a determination, however, because the

appeal is frivolous, making remand futile. See Alvarez, 210 F.3d

at 310.

We review the district court’s summary judgment determination

de novo. Threadgill v. Prudential Sec. Group, Inc., 145 F.3d 286,

292 (5th Cir. 1998). Texas’s doctrine of collateral estoppel

requires, inter alia, that the party against whom the defense is

asserted has been a party or in privity with a party in the first

action. McCoy v. Hernandez, 203 F.3d 371, 374 (5th Cir. 2000).

The defense of collateral estoppel is being asserted against Geier,

2 who was a party to his criminal proceedings; McCoy is therefore not

controlling, and Geier has not demonstrated any error on the part

of the district court in applying the doctrine.

As for Geier’s assertions that the district court erred in

applying the other elements of the doctrine, he is deemed to have

abandoned them because he raised this argument for the first time

in his reply brief. See Cinel v. Connick, 15 F.3d 1338, 1345 (5th

Cir. 1994). Additionally, Geier’s argument that the summary

judgment violated the doctrine of “law of the case” is rejected as

legally frivolous.

This appeal is without arguable merit and is thus dismissed as

frivolous. Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983);

5TH CIR. R. 42.2.

APPEAL DISMISSED.