James Durham v. Dee Anderson


UNPUBLISHED OPINION FILED. [16-11825 Dismissed for Lack of Jurisdiction] Judge: WED, Judge: EBC, Judge: GJC; denying motion to appoint counsel filed by Appellant Mr. James Durham [8406132-2] [16-11825]

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Case: 16-11825 Document: 00514209686 Page: 1 Date Filed: 10/25/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11825 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 25, 2017 Lyle W. Cayce Clerk JAMES DURHAM, Plaintiff-Appellant v. DEE ANDERSON, Sheriff, Defendant-Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CV-1027 Before DAVIS, CLEMENT and COSTA, Circuit Judges. PER CURIAM: * James Durham appeals the district court’s dismissal of his 42 U.S.C. § 1983 complaint pursuant to the screening provisions of 28 U.S.C. § 1915A. Durham alleged that the defendant was liable for injuries he received when he was beaten with a mop handle by another jail inmate. As a threshold matter, this court must determine whether it has jurisdiction to entertain the appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-11825 Document: 00514209686 Page: 2 Date Filed: 10/25/2017 No. 16-11825 Cir. 1987). A timely notice of appeal is mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205, 214 (2007). Durham’s notice of appeal, which we consider filed no earlier than the date he signed it on December 18, 2016, is untimely from the district court’s judgment, which was entered on November 7, 2016. See FED. R. APP. P. 4(a)(1)(A) (a party must file a notice of appeal in a civil case within 30 days of the order or judgment). There is no basis to construe his notice of appeal as a motion for extension of time under Federal Rule of Appellate Procedure 4(a)(5). Accordingly, his appeal is dismissed for lack of jurisdiction. See Bowles, 551 U.S. at 214. His motion for appointment of counsel is denied. APPEAL DISMISSED; MOTION DENIED. 2

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