Capers v. Lindsay

Case: 21-20526 Document: 00516421628 Page: 1 Date Filed: 08/05/2022

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 5, 2022 No. 21-20526 Lyle W. Cayce Summary Calendar Clerk

Deidrick L. Capers, Plaintiff—Appellant, versus P. Lindsay; Ed Gonzalez, Defendants—Appellees.

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:19-CV-1006

Before Higginbotham, Graves, and Ho, Circuit Judges.

Per Curiam:* Deidrick L. Capers, a former Harris County Jail detainee, appeals the dismissal of his 42 U.S.C. § 1983 civil rights complaint. Before considering his appeal, we must examine the basis of our jurisdiction. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).

Case: 21-20526 Document: 00516421628 Page: 2 Date Filed: 08/05/2022

No. 21-20526

After the district court entered judgment dismissing Capers’s complaint, Capers filed a letter asking the district court to reconsider its ruling. The letter was filed within 28 days from the district court’s entry of judgment and is properly construed as a Federal Rule of Civil Procedure 59(e) motion. See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994).

Where a litigant files a timely Rule59(e) motion and a notice of appeal, the notice of appeal does not become effective until 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 ruled on the 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. Accordingly, the case is remanded to the district court for the limited purpose of allowing the district court to rule on Capers’s pending postjudgment motion.

LIMITED REMAND; APPEAL HELD IN ABEYANCE.