Donnelly v. Clemens ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 27, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-60478
Summary Calendar
LONNIE DONNELLY,
Plaintiff-Appellant,
versus
WES CLEMENS; AMBER DARBY; LINDA EDWARDS; DIANE FOY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-501-S
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Before HIGGINBOTHAM, DAVIS, and PRADO, Circuit Judges.
PER CURIAM:*
Lonnie Donnelly, Mississippi prisoner # K1304, appeals the
magistrate judge’s dismissal as frivolous of his 42 U.S.C. § 1983action alleging denial of access to the courts. This court must
examine the basis of its jurisdiction on its own motion if
necessary.1 Under FED. R. APP. P. 4(a)(4), the filing of a timely
FED. R. CIV. P. 59(e) motion renders a notice of appeal ineffective
*
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that this opinion should not be published and is not precedent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.
1
See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
No. 03-60478
-2-
until an order is entered disposing of the motion. A motion
requesting reconsideration of a judgment is treated as a FED.
R. CIV. P. 59(e) motion for purposes of FED. R. APP. P. 4(a)(4),
regardless of the label applied to the motion, if it is made within
the ten-day limit for such motions.2
Although styled as “objections” to the judgment, Donnelly’s
postjudgment filing challenges the magistrate judge’s dismissal of
his complaint. Accordingly, despite the label affixed by this pro
se litigant, the postjudgment filing must be regarded as a FED. R.
CIV. P. 59(e) motion because it was filed within ten days of the
entry of judgment.3
Accordingly, this case must be remanded, and the record
returned to the magistrate judge, so that the magistrate judge may
rule on Donnelly’s FED. R. CIV. P. 59(e) motion as expeditiously as
possible, consistent with a just and fair disposition thereof.4
This court retains jurisdiction over the appeal except for the
purposes of the limited remand stated above.
LIMITED REMAND.
2
See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir.
1994); Harcon Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d
665, 667 (5th Cir. 1986)(en banc).
3
See FED. R. CIV. P. 6(a); see also Harcon Barge, 784 F.2d
at 667.
4
See Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).