James Durham v. Dee Anderson

Fifth Circuit

James Durham v. Dee Anderson

699 F. App'x 389

CourtCourt of Appeals for the Fifth Circuit

DecidedOctober 25, 2017

Docket16-11825 Summary Calendar

StatusUnpublished

Cited by1 cases

This text of 699 F. App'x 389 (James Durham v. Dee Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

James Durham v. Dee Anderson, 699 F. App'x 389 (5th Cir. 2017).

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Opinion

PER CURIAM: *

James Durham appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the screening provisions of 28 U.S.C. § 1915A. Durham alleged that the defendant was liable for injuries he received when he was beaten with a mop handle by another jail inmate.

As a threshold matter, this court must determine whether it has jurisdiction to entertain the appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Durham’s notice of appeal, which we consider filed no earlier than the date he signed it on December 18, 2016, is untimely from the district court’s judgment, which was entered on November 7, 2016. See FED. R. APP. P. 4(a)(1)(A) (a party must file a notice of appeal in a civil case within 30 days of the order or judgment). There is no basis to construe his notice of appeal as a motion for extension of time under Federal Rule of Appellate Procedure 4(a)(5). Accordingly, his appeal is dismissed for lack of jurisdiction. See Bowles, 551 U.S. at 214, 127 S.Ct. 2360. His motion for appointment of counsel is denied.

APPEAL DISMISSED; MOTION DENIED.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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

James Durham appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the screening provisions of 28 U.S.C. § 1915A. Durham alleged that the defendant was liable for injuries he received when he was beaten with a mop handle by another jail inmate.

As a threshold matter, this court must determine whether it has jurisdiction to entertain the appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007).

Durham’s notice of appeal, which we consider filed no earlier than the date he signed it on December 18, 2016, is untimely from the district court’s judgment, which was entered on November 7, 2016. See FED. R. APP. P. 4(a)(1)(A) (a party must file a notice of appeal in a civil case within 30 days of the order or judgment). There is no basis to construe his notice of appeal as a motion for extension of time under Federal Rule of Appellate Procedure 4(a)(5). Accordingly, his appeal is dismissed for lack of jurisdiction. See Bowles, 551 U.S. at 214, 127 S.Ct. 2360. His motion for appointment of counsel is denied.

APPEAL DISMISSED; MOTION DENIED.

*

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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699 F. App'x 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-durham-v-dee-anderson-ca5-2017.

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