JUSTICE v. DAVIS (2018)

Ricky Barnard Justice, Texas prisoner # 1811175, appeals the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 action.

This court must examine the basis of its jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We liberally construe Justice’s pro se objections, which were filed within 28 days after the entry of the district court’s judgment, as a Federal Rule of Civil Procedure 59(e) motion to alter or amend the judgment. See Fed. R. Civ. P. 59(e); Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); United States v. Gallardo, 915 F.2d 149, 150 n.2 (5th Cir. 1990). Where a litigant files a timely Rule 59(e) motion and a notice of appeal, the notice of appeal does not become effective until the entry of the order disposing of the motion. FED. R. APP. P. 4(a)(4)(A)(iv), (B)(i); Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).

Because the district court has not yet ruled on Justice’s constructive Rule 59(e) motion, this appeal is premature. See Fed. R. App. P. 4(a)(4)(B)(i); Ross v. Marshall, 426 F.3d 745, 751-52 (5th Cir. 2005); Burt, 14 F.3d at 260-61. The case is, therefore, remanded to the district court for the limited purpose of allowing the district court to rule on Justice’s pending postjudgment motion. Justice’s appeal is held in abeyance.

REMANDED FOR LIMITED PURPOSE; APPEAL HELD IN ABEYANCE.

FOOTNOTES

FOOTNOTE.  

PER CURIAM: * FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.