Ricky Ewing v. J. Burke

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 5, 2020
• Docket: 19-60434
• Status: Unpublished

Opinion

Case: 19-60434 Document: 00515297038 Page: 1 Date Filed: 02/04/2020

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED February 4, 2020 No. 19-60434 Lyle W. Cayce Summary Calendar Clerk

RICKY R. EWING,

Plaintiff–Appellant,

v.

DOCTOR J. BURKE, Wilkinson County Correctional Facility; N. REED, HSA/Wilkinson County Correctional Facility,

Defendants–Appellees.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 5:19-CV-34

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges. PER CURIAM:* Ricky R. Ewing, Mississippi prisoner # 34353, seeks authorization to proceed in forma pauperis (IFP) following the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 complaint and denial of leave to proceed IFP on appeal. Both Ewing’s notice of appeal and his motion in the district court for leave to proceed IFP on appeal were stamped as filed by the district court

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Case: 19-60434 Document: 00515297038 Page: 2 Date Filed: 02/04/2020

No. 19-60434

on June 17, 2019, which was more than 30 days after the May 13, 2019 entry of the district court’s judgment. See FED. R. APP. P. 4(a)(1)(A); Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). This case is REMANDED to the district court for the limited purpose of making a determination whether Ewing’s notice of appeal was otherwise timely under Federal Rule of Appellate Procedure 4(c)(1), and, if the district court determines that the appeal was untimely, whether the deadline for filing the notice of appeal is extended under Federal Rule of Appellate Procedure 4(a)(5).