Howard Carroll v. John Rupert

Fifth Circuit

Howard Carroll v. John Rupert

679 F. App'x 366

Court of Appeals for the Fifth Circuit·Decided March 9, 2017·No. 15-41457 Summary Calendar·Unpublished

Opinion

PER CURIAM: *

The court sua sponte grants rehearing, withdraws its previous opinion in this matter, Carroll v. Rupert, No. 15-41457, 2017 WL 763843 (5th Cir. Feb. 24, 2017) (unpublished), and substitutes the following.

Howard F. Carroll, Texas prisoner # 1067360, appeals the dismissal, without prejudice, of his 42 U.S.C. § 1983 complaint for want of prosecution and failure to obey an order. Carroll argues that the district court erred in dismissing his com *367 plaint. He also challenges the magistrate judge’s denial of his motion for appointment of counsel. He further requests the appointment of appellate counsel.

The district court construed Carroll’s October 2015 objections to the magistrate judge’s report as a motion for relief from judgment, and it granted relief, vacating its order of dismissal and judgment. We construe the district court’s action as arising under Federal Rule of Civil Procedure 59(e). See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). In view of the foregoing, this appeal is moot. See Ctr. for Biological Diversity, Inc. v. BP America Prod. Co., 704 F.3d 413, 431 (5th Cir. 2013).

Accordingly, the appeal is DISMISSED AS MOOT. Carroll’s request for appointment of appellate counsel is DENIED AS MOOT.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

The court sua sponte grants rehearing, withdraws its previous opinion in this matter, Carroll v. Rupert, No. 15-41457, 2017 WL 763843 (5th Cir. Feb. 24, 2017) (unpublished), and substitutes the following.

Howard F. Carroll, Texas prisoner # 1067360, appeals the dismissal, without prejudice, of his 42 U.S.C. § 1983 complaint for want of prosecution and failure to obey an order. Carroll argues that the district court erred in dismissing his com *367 plaint. He also challenges the magistrate judge’s denial of his motion for appointment of counsel. He further requests the appointment of appellate counsel.

The district court construed Carroll’s October 2015 objections to the magistrate judge’s report as a motion for relief from judgment, and it granted relief, vacating its order of dismissal and judgment. We construe the district court’s action as arising under Federal Rule of Civil Procedure 59(e). See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). In view of the foregoing, this appeal is moot. See Ctr. for Biological Diversity, Inc. v. BP America Prod. Co., 704 F.3d 413, 431 (5th Cir. 2013).

Accordingly, the appeal is DISMISSED AS MOOT. Carroll’s request for appointment of appellate counsel is DENIED AS MOOT.

*

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.

Howard Carroll v. John Rupert, 679 F. App'x 366 (5th Cir. 2017).

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