Wallen v. Olsen , 75 F. App'x 289 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 17, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40514
Summary Calendar
DAVID LYNN WALLEN,
Plaintiff-Appellant,
versus
MICHAEL J. OLSEN, Sergeant; ROBERT A. WALKER, Sergeant;
GILBERT ENNIS, Lieutenant; JOHN R. MCDANIEL, Lieutenant;
CHRISTOPHER W. AGAPIOU, Sergeant; CORNELIUS E. SMITH, Captain;
NEAL D. WEBB, Assistant Warden; ERIC L. FRUGE, Correctional
Officer III; KEVIN L. CARLVIN, Sergeant; TALIESIN R. STERN,
Sergeant; GARY L. JOHNSON; STATE OF TEXAS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:02-CV-323
--------------------
Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
David Lynn Wallen, Texas prisoner # 341807, proceeding
in forma pauperis, filed a pro se complaint pursuant to 42 U.S.C.
§ 1983 and consented to have his case determined by a magistrate
judge. After conducting a Spears** hearing to more fully develop
*
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that this opinion should not be published and is not precedent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.
**
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
No. 03-40514
-2-
Wallen’s claims, the magistrate judge dismissed the complaint
with regard to all defendants as frivolous and for failure to
state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Specifically,
the magistrate judge dismissed Wallen’s claims that the
defendants had been deliberately indifferent to his serious
medical needs by feeding him non-diabetic food loaves.
This court must examine the basis of its jurisdiction on its
own motion if necessary. See Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). 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 until an order is entered disposing of the motion.
A motion requesting reconsideration of the judgment is treated
as a Rule 59 motion for purposes of Rule 4(a)(4), regardless of
the label applied to the motion, if it is made within the 10-day
limit for Rule 59 motions. 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).
Although styled as “objections” to the judgment, Wallen’s
post-judgment filing challenges the magistrate judge’s dismissal
of his deliberate-indifference claim and contains a renewed
argument with respect to his conditions-of-confinement claim.
Accordingly, despite the label affixed by this pro se litigant,
the post-judgment filing must be regarded as a FED. R. CIV. P.
59(e) motion because it was filed within 10 days of the entry of
judgment. See Harcon Barge, 784 F.2d at 667.
No. 03-40514
-3-
Accordingly, this case must be remanded, and the record
returned to the magistrate judge, so that the magistrate judge
may rule upon Wallen’s Rule 59(e) as expeditiously as possible,
consistent with a just and fair disposition thereof. See Burt
v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).
This court retains jurisdiction over the appeal except for
the purposes of the limited remand stated above.
LIMITED REMAND.