Jackson v. Young , 251 F. App'x 281 ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 16, 2007
No. 05-41401
Summary Calendar Charles R. Fulbruge III
Clerk
REGINALD EUGENE JACKSON
Plaintiff-Appellant
v.
UNIDENTIFIED YOUNG, Eastham Unit Physician Assistant; UNIDENTIFIED
ONUORA, Eastham Unit Physician Assistant; UNIDENTIFIED JONES,
Eastham Unit Physician Assistant; DR UNIDENTIFIED KYLES, Eastham Unit
Doctor; UNIDENTIFIED CHAMBERS, Eastham Unit Nurse; UNIDENTIFIED
POWERS, Eastham Unit Nurse; BILL LEWIS, Eastham Unit Officer;
UNIDENTIFIED WILLIAMS, Eastham Unit Doctor; UNIDENTIFIED
LATHAM, Eastham Unit Nurse; UNIDENTIFIED HUGHES
Defendants-Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 9:04-CV-234
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Reginald Eugene Jackson, Texas prisoner # 1018935, appeals the
dismissal of his pro se, in forma pauperis (IFP), 42 U.S.C. § 1983 complaint as
frivolous and for failure to state a claim. He alleged that he sustained injuries
after falling down a flight of stairs and contended that the fall was the product
*
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should not be published and is not precedent except under the limited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.
No. 05-41401
of deliberate indifference on the part of the prison officials because they removed
his ground floor housing restrictions.
A timely notice of appeal in a civil case is mandatory and jurisdictional.
Bowles v. Russell, 127 S. Ct. 2360, 2363-66 (2007). Jackson did not file a timely
notice of appeal from the dismissal of his § 1983 complaint.
See FED. R. APP. P. 4(a). Accordingly, Jackson’s appeal of the judgment
dismissing his § 1983 complaint is dismissed for want of jurisdiction. See
Bowles, 127 S. Ct. at 2366.
Jackson’s notice of appeal was timely with regard to the denial of his
FED. R. CIV. P. 60(b) motion. This court reviews the district court’s denial of a
Rule 60(b) motion for abuse of discretion. See Warfield v. Byron, 436 F.3d 551,
555 (5th Cir. 2006).
Jackson argues that the district court erred in denying his FED. R. CIV.
P. 60(b) motion which sought an extension of time to file a motion for a new trial.
He avers that he was prevented from filing a timely motion for new trial under
FED. R. CIV. P. 59(e) due to his restricted access to the prison library and his lack
of legal knowledge. The district court did not abuse its discretion in denying
Jackson’s FED. R. CIV. P. 60(b) motion. A court may not extend the time for filing
a FED. R. CIV. P. 59(e) motion. See FED. R. CIV. P. 6(b); Hauben v. Harmon,
605 F.2d 920, 926 (5th Cir. 1979). The judgment denying Jackson’s
FED. R. CIV. P. 60(b) motion is affirmed.
The district court’s dismissal of Jackson’s complaint as frivolous and for
failure to state a claim counts as a strike under 28 U.S.C. § 1915(g). See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Jackson is cautioned
that if he accumulates three strikes, he will not be allowed to proceed IFP in any
civil action or appeal filed while he is incarcerated or detained in any facility
unless he is under imminent danger of serious physical injury. See § 1915.
APPEAL DISMISSED IN PART; AFFIRMED IN PART; SANCTION
WARNING ISSUED.
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