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 2012-11

Robert White v. Joe Lamartiniere , 497 F. App'x 435 ( 2012 )


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  •      Case: 12-30339       Document: 00512063920         Page: 1     Date Filed: 11/27/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
November 27, 2012
No. 12-30339
Summary Calendar                        Lyle W. Cayce
Clerk
ROBERT LATROY WHITE,
Plaintiff-Appellant
v.
JOE LAMARTINIERE, Assistant Warden, In His Individual & Official Capacity;
TROY PORET, Assistant Warden, In His Individual & Official Capacity;
UNKNOWN BARR, Assistant Warden, In His Individual & Official Capacity; W.
RICHARDSON, Major, In His Individual & Official Capacity,
Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:11-CV-215
Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Robert Latroy White, Louisiana prisoner # 241145, has filed a motion for
leave to proceed in forma pauperis (IFP) on appeal from the district court’s
dismissal of his
    42 U.S.C. § 1983
     complaint. The district court denied White’s
IFP motion and certified that the appeal was not taken in good faith. By moving
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-30339     Document: 00512063920      Page: 2   Date Filed: 11/27/2012
No. 12-30339
for IFP status, White is challenging the district court’s certification. See Baugh
v. Taylor,
    117 F.3d 197
    , 202 (5th Cir. 1997).
As a threshold issue, we must first examine the basis of our jurisdiction.
Mosley v. Cozby,
    813 F.2d 659
    , 660 (5th Cir. 1987). White did not timely file a
notice of appeal within 30 days of the entry of the district court’s order
dismissing his complaint for failure to state a claim and denying his motion to
amend his complaint. See FED. R. APP. P. 4(a)(1)(A). Therefore, we do not have
jurisdiction to review the district court’s order. See Bowles v. Russell,
    551 U.S. 205
    , 214 (2007).
Although White’s notice of appeal was filed within 30 days of the entry of
the magistrate judge’s denial of his motion to amend, the district court had
already denied the motion to amend and, therefore, the motion was no longer
pending before the magistrate judge at the time that the magistrate judge ruled
on it. See, e.g.,
    28 U.S.C. § 636
    (b)(1); see also Smith v. School Bd. of Orange
County,
    487 F.3d 1361
    , 1366 (11th Cir. 2007) (holding that pending objections
to magistrate’s order, which denied plaintiff’s various discovery motions, were
moot in light of district court’s grant of summary judgment for defendant). The
issuance of a redundant order did not provide White with a second opportunity
to appeal. See, e.g., In re Weston,
    18 F.3d 860
    , 863 (10th Cir. 1994) (stating that
the court would not review the appeal of a January order because a December
order remained the final resolution of the matter, independent of subsequent
events).   Further, White would be required to appeal any ruling by the
magistrate judge to the district court first, rather than to this court. See
    28 U.S.C. § 636
    (b)(1). Accordingly, White’s motion for leave to proceed IFP on
appeal is denied, and his appeal is dismissed for lack of jurisdiction. See
    id.
    MOTION DENIED; APPEAL DISMISSED.
2