Alfred v. Wilkinson

Full title: Peter Roy ALFRED, Jr., Plaintiff-Appellant v. Tim WILKINSON; Winn…

Court: United States Court of Appeals, Fifth Circuit

Date published: Oct 7, 2009

348 F. App'x 942 (5th Cir. 2009)

Opinion

No. 09-30141 Summary Calendar.

October 7, 2009.

Peter Roy Alfred, Jr., Winnfield, LA, pro se.

Appeal from the United States District Court for the Western District of Louisiana, USDC No. 1:08-CV-532.

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:[fn*] [fn*] 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Peter Roy Alfred, Jr., Louisiana prisoner # 315023, seeks leave to appeal in forma pauperis the dismissal of his 42 U.S.C. § 1983 suit arising from the seizure of a pair of hightop tennis shoes.

This court must examine the basis of its jurisdiction sua sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205, 207-13, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). The notice of appeal in a civil action must be filed within 30 days of entry of the judgment or order from which the appeal is taken. 28 U.S.C. § 2107(a); FED. R.APP. P. 4(a)(1)(A). Alfred did not file his notice of appeal until over five months after the dismissal of his suit as frivolous.

Construing Alfred's notice of appeal as a motion to reopen the appeal period under FED. R.APP. P. 4(a)(6), we hereby remand this case to the district court for the limited purpose of determining whether Alfred's appeal should be reopened pursuant to Rule 4(a)(6). The district court is directed to return the case to this court for further proceedings or dismissal, as appropriate, once the ruling has been made.

LIMITED REMAND.