George Jones v. Dustin Anderson

Filing

NON DISPOSITIVE UNPUBLISHED OPINION FILED. Judge: EHJ , Judge: JLW , Judge: EBC Awaiting District Court Action deadline due on 03/14/2017 Case 15-10514 placed in abeyance for limited remand in 2:13CV122 from the Northern District of Texas [15-10514]

Case: 15-10514

Document: 00513834945

Page: 1

Date Filed: 01/13/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 15-10514
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
January 13, 2017
Lyle W. Cayce
Clerk

GEORGE JONES,
Plaintiff-Appellant
v.
DUSTIN ANDERSON, Sergeant,
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:13-CV-122
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *

Plaintiff-Appellant George Alvin Jones, Texas prisoner # 1436799,
appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint and
grant of the defendant’s motion for summary judgment, pursuant to Federal
Rule of Civil Procedure 56.
We must examine the basis of our jurisdiction, and we may do so sua
sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). Jones’s

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-10514

Document: 00513834945

Page: 2

Date Filed: 01/13/2017

No. 15-10514
“Response to Order Granting Summary Judgment,” which seeks to have his
case reinstated and tried before a jury, and which was filed within 28 days of
the district court’s entry of judgment, is properly construed as a Federal Rule
of Civil Procedure 59(e) motion. See United States v. Gallardo, 915 F.2d 149,
150 n.2 (5th Cir. 1990) (construing post-judgment objection to the magistrate
judge’s report as a Rule 59(e) motion). When 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).
This appeal is premature because the district court has not yet decided
the constructive Rule 59(e) motion. 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. We
therefore remand this case to the district court for the limited purpose of
allowing it to rule on Jones’s pending post-judgment motion. Jones’s appeal is
held in abeyance pending such disposition by the district court.
REMANDED

FOR

LIMITED

ABEYANCE.

2

PURPOSE;

APPEAL

HELD

IN