Williams v. Massey

Full title: Woodrow Wilson WILLIAMS, Plaintiff-Appellant v. Lloyd MASSEY, Warden…

Court: United States Court of Appeals, Fifth Circuit

Date published: Jun 24, 2010

384 F. App'x 335 (5th Cir. 2010)

Opinion

No. 09-41071 Summary Calendar.

June 24, 2010.

Woodrow Wilson Williams, Livingston, TX, pro se.

Appeal from the United States District Court for the Eastern District of Texas, USDC No. 9:08-CV-151.

Before JOLLY, WIENER, and ELROD, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Plaintiff-Appellant Woodrow Wilson Williams, Texas prisoner # 672377, seeks appointment of counsel and leave to proceed in forma pauperis (IFP) in his appeal from the district court's denial of his motion for reconsideration of the order denying his motion for copies of prison records filed in support of his 42 U.S.C. § 1983 complaint.

We must examine the basis of our 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, 214, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007). Under Rule 4(a)(1)(A) of the Federal Rules of Appellate Procedure, a notice of appeal in a civil case must be filed within 30 days after entry of the judgment or order being appealed. If a party timely files a motion pursuant to Federal Rule of Civil Procedure 59(e), the time to file an appeal from the denial of the judgment or order runs from the entry of the order disposing of such motion. FED. R.APP. P. 4(a)(4)(A)(iv).

The district court's order denying Williams's motion for copies of prison records was entered on March 9, 2009. Williams filed a motion for reconsideration within the time period for filing a Rule 59(e) motion, which was denied on March 23, 2009, so the 30-day period for filing a notice of appeal began to run the next day. Williams filed the instant notice of appeal on October 19, 2009, alleging that he did not receive notice of the district court's order until September 30, 2009.

The record refutes that contention, reflecting that Williams received a copy of the district court's order on March 27, 2009. Further, Williams's notice of appeal could not have been construed as a motion to extend or reopen the appeal period. See FED. R.APP. P. 4(a)(5), (a)(6). Therefore, Williams's notice of appeal was un-timely, and we lack jurisdiction to consider the instant appeal. See Bowles, 551 U.S. at 214, 127 S.Ct. 2360.

Accordingly, Williams's appeal is DISMISSED for lack of jurisdiction, and his motions for the appointment of counsel and for leave to proceed IFP on appeal are DENIED.