Darrell Tripp v. Gateway Foundation, et al

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Darrell Tripp v. Gateway Foundation, et al Doc. 0 Case: 10-50327 Document: 00511220946 Page: 1 Date Filed: 08/31/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit _____________________ FILED Nos. 09-51120 & 10-50327 _____________________ D A R R E L L TRIPP, Plaintiff - Appellant v. G A T E W A Y FOUNDATION; WEBER, Director of Gateway Foundation, Defendants - Appellees __________________________ Appeal from the United States District Court for the Western District of Texas U S D C No. 1:09-CV-522 __________________________ B e fo r e CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges. P E R CURIAM:* T h is court must examine the basis of its jurisdiction, on its own motion if n e c e s s a r y . Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000). Pursuant to 28 U.S.C. 2107(a) and Federal Rule of Appellate Procedure 4 (a )(1 )(A ), the notice of appeal in a civil case must be filed within thirty days of e n tr y of judgment. In this civil rights action filed by a state prisoner, the district c o u r t entered final judgment dismissing the complaint on November 4, 2009. Therefore, the final day for filing a timely notice of appeal was December 4, * August 31, 2010 Lyle W. Cayce Clerk 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Dockets.Justia.com Case: 10-50327 Document: 00511220946 Page: 2 Date Filed: 08/31/2010 09-51120 & 1 0 -5 0 3 2 7 2 0 0 9 . The plaintiff filed a timely notice of appeal, but this court dismissed the a p p e a l on March 22, 2010, for failure to pay the fees or move to appeal in forma p a u p e r is (IFP). Tripp v. Gateway Found., No. 09-51120 (5th Cir. Mar. 22, 2010). On April 1, 2010, the plaintiff filed a new notice of appeal, which was assigned n u m b e r 10-50327. Treating the document as a notice of appeal of the district c o u r t's judgment of December 7, 2009, it is plainly out of time. The timeliness o f a notice of appeal in a civil case is jurisdictional. Bowles v. Russell, 551 U.S. 2 0 5 , 212-13 (2007). Accordingly, the appeal is dismissed. H o w e v e r , based on the timing of the notice, it is possible that the plaintiff w a s attempting to have this court reconsider its March 22 dismissal. Out of an a b u n d a n c e of caution and in the interest of justice, we treat the document as a m o t io n to reconsider the dismissal of appeal number 09-51120. Pursuant to our I n t e r n a l Operating Procedure following 5th Circuit Rule 27, an appeal dismissed b y the clerk ordinarily will not be reinstated unless the default has been r e m e d ie d and the motion to reinstate is filed within forty-five days after d is m is s a l. Here, the plaintiff did not remedy the default (by preparing his IFP m o t io n ) until forty-nine days after his appeal was dismissed. Moreover, his m o t io n contains no explanation for his prior failure to pay the filing fee timely o r make timely application for IFP status. Accordingly, the motion to reconsider t h e denial of number 09-51120 is denied. I T IS SO ORDERED.

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