Johnson v. Prator

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 14, 2024
• Docket: 24-30058
• Status: Unpublished

Opinion

Case: 24-30058 Document: 46-1 Page: 1 Date Filed: 08/14/2024

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-30058 FILED August 14, 2024 Summary Calendar ____________ Lyle W. Cayce Clerk Kareem Abdul Johnson,

Plaintiff—Appellant,

versus

Steve Prator; Chaplain Patin-Hammond; Director Hicks; K. Tyler; M. Merritt,

Defendants—Appellees. ______________________________

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:22-CV-5713 ______________________________

Before Jones, Dennis, and Southwick, Circuit Judges. Per Curiam: * Kareem Abdul Johnson, Louisiana prisoner number 105117, filed an appeal from the dismissal without prejudice of his 42 U.S.C. § 1983 complaint as moot. The appellees have moved to dismiss this appeal for lack of jurisdiction, arguing that Johnson failed to file a timely notice of appeal.

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-30058 Document: 46-1 Page: 2 Date Filed: 08/14/2024

No. 24-30058

A timely “notice of appeal in a civil case is a jurisdictional requirement” where, as here, the time limit is set by statute. Bowles v. Russell, 551 U.S. 205, 214 (2007); see 28 U.S.C. § 2107(a) (providing thirty days to take an appeal from the entry of judgment, order, or decree in a civil case). Johnson’s notice of appeal was not filed within thirty days of the district court’s dismissal of his complaint. See Fed. R. App. P. 4(a)(1)(A). Because his post-judgment motion was filed more than twenty-eight days after the dismissal of his complaint, the motion is properly construed as a Federal Rule of Civil Procedure 60(b) motion for relief from judgment, which did not extend the time for filing a notice of appeal or bring up the underlying judgment for review. See Fed. R. App. P. 4(a)(4)(A); see also Shepherd v. Int’l Paper Co., 372 F.3d 326, 328 n.1 (5th Cir. 2004) (explaining how to distinguish between Rule 59(e) and Rule 60(b) motions); Williams v. Chater, 87 F.3d 702, 705 (5th Cir. 1996) (“[A]n appeal from the denial of Rule 60(b) relief does not bring up the underlying judgment for review[.]”). We do not have jurisdiction to review the dismissal of his complaint. See Bowles, 551 U.S. at 214. But, since Johnson filed his notice of appeal within thirty days of the entry of the order denying his Rule 60(b) motion, we have jurisdiction to review that order. See id. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Accordingly, the motion to dismiss is DENIED. Johnson does not address the district court’s denial of his Rule 60(b) motion. Although pro se briefs are afforded liberal construction, see Haines v. Kerner, 404 U.S. 519, 520 (1972), even pro se litigants must brief issues to preserve them, Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Fed. R. App. P. 28(a)(8). Johnson has therefore forfeited any challenge to the denial of his Rule 60(b) motion. See Rollins v. Home Depot USA, Inc., 8 F.4th 393, 397 (5th Cir. 2021) (citations omitted). The district court’s judgment is AFFIRMED.