Steven Walcott, Jr. v. Nurse Pat

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 19, 2018
• Docket: 17-30789
• Status: Unpublished

Opinion

Case: 17-30789 Document: 00514690468 Page: 1 Date Filed: 10/19/2018

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

FILED No. 17-30789 October 19, 2018 Summary Calendar Lyle W. Cayce Clerk

STEVEN ANTHONY WALCOTT, JR.,

Plaintiff - Appellant

v.

PAT NAQUIN; TERREBONNE PARISH JAIL MEDICAL DEPARTMENT; RICHARD NEAL, Head Nurse/Doctor; TERREBONNE PARISH CONSOLIDATED GOVERNMENT,

Defendants - Appellees

Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:16-CV-15587

Before BARKSDALE, ELROD, and HO, Circuit Judges. PER CURIAM: * Proceeding pro se and in forma pauperis, Steven Anthony Walcott, Jr., Terrebonne Parish # 51734 and Louisiana prisoner # 344820, contests the dismissal of his 42 U.S.C. § 1983 complaint as frivolous and for failure to state a claim on which relief can be granted. He contends defendants were

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.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: 17-30789 Document: 00514690468 Page: 2 Date Filed: 10/19/2018

No. 17-30789

deliberately indifferent to his serious medical needs by denying him effective and immediate dental care. We must, however, determine sua sponte whether we have jurisdiction to review this appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely appeal is a jurisdictional prerequisite if, as here, the time limit is set by statute. Hamer v. Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 16 (2017); Bowles v. Russell, 551 U.S. 205, 214 (2007); 28 U.S.C. § 2107(a). In a civil matter, a notice of appeal must be filed within 30 days of entry of the judgment or order being appealed. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). The final judgment dismissing Walcott’s complaint was entered on 22 August 2017. Walcott averred he placed his notice of appeal in the prison mailing system on 25 September 2017. See Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009) (prison mailbox rule). Therefore, Walcott’s notice of appeal is untimely. Although his appeal was filed within the 30-day period to seek an extension of time based on excusable neglect or good cause, Fed. R. App. P. 4(a)(5)(A), his notice of appeal is not such a request because he did not provide any explanation for his late filing, see Durham v. Anderson, 699 F. App’x 389, 389 (5th Cir. 2017); Nichols v. Hickman, 699 F. App’x 330, 330–31 (5th Cir. 2017). Therefore, this appeal is dismissed for lack of jurisdiction. See Hamer, 138 S. Ct. at 16; Bowles, 551 U.S. at 215. DISMISSED.