Rickie Thompson v. Sharma Sharad ( 2019 )

Case: 19-20013 Document: 00515251909 Page: 1 Date Filed: 12/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-20013 December 30, 2019
Summary Calendar
Lyle W. Cayce
Clerk
RICKIE THOMPSON,
Plaintiff-Appellant
v.
DOCTOR SHARMA SHARAD; JOHN SEALY HOSPITAL, GALVESTON,
TEXAS,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:18-CV-4240
Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
Rickie Thompson, Texas prisoner # 828601, appeals the dismissal of his
complaint under 42 U.S.C. § 1983. He also moves for the appointment of
counsel. Thompson had 30 days from the entry of the November 15, 2018
judgment to file a timely notice of appeal. See FED. R. APP. P. 4(a)(1)(A).
Thompson’s pro se notice of appeal was filed, at the earliest, on December 27,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-20013 Document: 00515251909 Page: 2 Date Filed: 12/30/2019
No. 19-20013
2018, and is therefore untimely. See id.; Cooper v. Brookshire, 70 F.3d 377,
379-81 (5th Cir. 1995) (prison mailbox rule). Likewise, his postjudgment
motion, styled as a motion under Federal Rule of Civil Procedure 59(e) or
Federal Rule of Civil Procedure 60(b), was untimely as a Rule 59(e) motion and
was not a Rule 60(b) motion that was “filed no later than 28 days after the
[entry of] the judgment[.]” FED. R. APP. P. 4(a)(4)(A)(iv), (vi); see FED. R. CIV.
P. 59(e).
A district court may grant a defendant an additional 30 days in which to
file a notice of appeal upon a showing of excusable neglect or good cause. See
FED. R. APP. P. 4(a)(5). Thompson’s postjudgment motion, which was filed
within this additional 30-day period, sufficed as a motion under Rule 4(a)(5).
Accordingly, Thompson’s appeal and motion are held in abeyance, and the case
is REMANDED to the district court for the limited purpose of issuing a ruling
under Rule 4(a)(5). Upon ruling, the district court shall promptly return the
case to this court for dismissal or further proceedings, as may be appropriate.
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