Nikita Goffney v. J. Sauceda, et al

Filing

NON. DISPOSITIVE UNPUBLISHED OPINION FILED FOR LIMITED REMAND for the limited purposed of having the district court rule on Goffney's January 28, 2011, objections, construed as a motion for relief from the order denying injunctive relief. deferring action on motion to appoint counsel filed by Appellant Mr. Nikita Van Goffney [6800371-2]; deferring action on motion authorize prep of transcript at government expense filed by Appellant Mr. Nikita Van Goffney [6789585-2]; Judge: EMG , Judge: LHS , Judge: CH Awaiting District Court Action deadline due on 12/06/2011 Case 11-20152 placed in abeyance for limited remand in 4:02CV2638 from the Southern District of Texas [11-20152]

Case: 11-20152

Document: 00511626854

Page: 1

Date Filed: 10/07/2011

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 11-20152
Summary Calendar

October 7, 2011
Lyle W. Cayce
Clerk

NIKITA VAN GOFFNEY,
Plaintiff-Appellant
v.
J. SAUCEDA; C. DAVIDSON; T. TAYLOR; J. EVERITT; G. HARDAY;
SERGEANT M. HOLT; J. FERRARO; T. PITZER; G. HARDAGE; COUNTY OF
MONTGOMERY; MICHAEL MCDOUGAL; JIM PREWITT; CITY OF CONROE,
Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:02-CV-2638

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
Nikita Van Goffney, Texas prisoner # 1582354, moves for appointment of
counsel and production of transcripts at Government expense on his appeal from
the district court’s orders denying his motions for relief pursuant to Federal Rule
of Civil Procedure 60(b) and his motion for a preliminary injunction. For the
reasons below, Goffney’s motions are held in abeyance.

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20152

Document: 00511626854

Page: 2

Date Filed: 10/07/2011

No. 11-20152
This court must consider the basis of appellate jurisdiction on its own
motion if necessary. Witherspoon v. White, 111 F.3d 399, 401 (5th Cir. 1997).
Before he filed a notice of appeal from the order denying injunctive relief,
Goffney, on January 28, 2011, filed objections to that order in which he sought
reconsideration of his motion for injunctive relief, albeit in a perfunctory
manner. Goffney’s request in his objections for reconsideration of the district
court’s nonfinal order denying injunctive relief, construed liberally, see Haines
v. Kerner, 404 U.S. 519, 520 (1972), arose under Rule 60(b), as that rule
contemplates motions seeking reliefs from nonfinal orders. See FED. R. CIV. P.
60(b). Goffney’s objections were filed within 28 days of the order denying
injunctive relief, and the constructive Rule 60(b) motion therefore tolled the 30day period for filing a timely notice of appeal until a ruling is issued on the
constructive motion. See FED. R. APP. P. 4(a)(4)(A)(vi). The constructive motion
also rendered Goffney’s notice of appeal ineffective until after such a ruling is
issued. See Rule 4(a)(4)(B)(i). Goffney’s case thus is remanded for the limited
purpose of having the district court rule on Goffney’s January 28, 2011,
objections, construed as a motion for relief from the order denying injunctive
relief.
As for the denial of the other Rule 60(b) motions Goffney seeks to appeal,
the claims remanded by this court remain pending in the district court; there is
no final judgment from which Goffney may appeal. The district court’s order
denying the Rule 60(b) motions does not fall within any of the appealable
interlocutory orders set forth in 28 U.S.C. § 1292(a), which is limited to certain
interlocutory orders regarding injunctions, receiverships, and admiralty cases.
Moreover, the district court did not certify its ruling as final or certify any
questions for appeal.
We also conclude that this appeal does not meet the test for application of
the collateral order doctrine. See Flanagan v. United States, 465 U.S. 259, 265
(1984); see also United States v. Edwards, 206 F.3d 461, 462 (5th Cir. 2000).
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Case: 11-20152

Document: 00511626854

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Date Filed: 10/07/2011

No. 11-20152
Thus, without reaching the merits of his appeal, we conclude that we lack
jurisdiction over the appeal from the denial of those motions.
MOTIONS HELD IN ABEYANCE; LIMITED REMAND IN PART;
APPEAL DISMISSED IN PART.

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