Esmael Balboa Tijerina, Plaintiff-appellant, v. Larry v. Plentl, Assistant Warden, et al., Defendants-appellees, 958 F.2d 133 (5th Cir. 1991)

Alleging prison guards attacked him in retaliation for his exercise of prison grievance procedures, Esmael Tijerina, an inmate in the Texas Department of Criminal Justice, Institutional Division, proceeding pro se and in forma pauperis (IFP), filed a complaint pursuant to 42 U.S.C. § 1983. Following trial, the jury returned a verdict for defendants and the district court entered judgment against Tijerina. Tijerina then moved for a new trial, which the district court denied as untimely. Subsequently, Tijerina filed a motion with this court to proceed IFP. Construing Tijerina's motion to proceed IFP as a timely notice of appeal, we find that we have jurisdiction to consider the merits of Tijerina's action. However, since Tijerina raises a section 1983 cause of action alleging an Eighth Amendment violation, we vacate the district court's opinion and remand with instructions to reconsider this case in light of the Supreme Court's recent decision in Hudson v. McMillian, --- U.S. ----, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992).

* Following a jury trial which resulted in judgment for the defendants, Tijerina filed two notices of appeal--one on December 10, 1990 and the other on December 14, 1990. On December 13, 1990, Tijerina served a motion for a new trial which was filed with the district court on December 18, 1990. Tijerina's motion for new trial extinguished his notices of appeal.¹  Tijerina then filed a Motion to Proceed IFP with the district court on January 10, 1991.

On February 26, 1991, the district court denied Tijerina's timely Motion for New Trial and Motion to Proceed IFP.²  The district court further held that even if Tijerina's motion were construed as a Rule 60(b) motion--a motion calling into question the correctness of the judgment--which can be filed up to a year following the entry of a judgment,³  the motion lacked merit. On March 21, 1991, Tijerina filed a motion with this court to proceed on appeal IFP.

II

When our jurisdiction is at all questionable and the parties have failed to raise the issue, this court must examine the basis of its jurisdiction on its own motion. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). We embark upon such an examination in this case.

Rule 4(a) (4) of the Federal Rules of Appellate Procedure provides that:

[i]f a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party ... under Rule 59 for a new trial, the time for appeal for parties shall run from the entry of the order denying a new trial or granting or denying any other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

Fed. R. App. P. 4(a) (4) (emphasis added). Pursuant to Rule 4(a) (4), the time for Tijerina to file a notice of appeal on the district court's denial of his motion for new trial began to run on February 26, 1991. Tijerina had 30 days from that date to file a notice of appeal.⁴  See Barber v. Security Ben. Life Ins. Co., 936 F.2d 210, 211 (5th Cir. 1991) ("An appellant has 30 days from entry of final judgment in which to file a notice of appeal. The 30-day period may be extended if a timely motion is filed in the district court under Fed. R. Civ. P. 59(e) to alter or amend the judgment."). Although Tijerina did not file a proper notice of appeal, he did file a motion to proceed IFP on March 21, 1991.

Tijerina's timely motion was accompanied by an Affidavit in Support of Motion to Proceed on Appeal In Forma Pauperis, which raises several grounds to challenge the district court's judgment against him and its denial of his motion to proceed on appeal IFP. This Court has repeatedly held that such a motion "is the substantial equivalent of a notice of appeal and is effective to invoke appellate jurisdiction." United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir. 1989).⁵ 

In Fischer, this court noted that, in order to qualify as the equivalent of notice of appeal, a document should accomplish the dual objectives of (1) notifying the court and (2) notifying opposing counsel of the taking of appeal. See Fischer, 759 F.2d at 464; see also Van Wyk El Paso Investment, Inc., 719 F.2d 806, 807 (5th Cir. 1983). Tijerina's motion to proceed IFP accomplishes these goals. In fact, Tijernia's IFP motion satisfies the requirements of Rule 3(c) of the Federal Rules of Appellate Procedure.⁶  Accordingly, we find that we have jurisdiction to consider the merits of Tijerina's appeal.

III

Tijerina alleges that prison guards attacked him in retaliation for his exercise of prison grievance procedures--a section 1983 excessive force action alleging an Eighth Amendment violation. While Tijerina's appeal was pending before this court, the United States Supreme Court decided Hudson v. McMillian, --- U.S. ----, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), and changed the standard we apply for excessive force claims. Specifically, the Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury, thereby overruling the significant injury standard we previously relied upon.⁷  Accordingly, we vacate the district court's opinion and remand with instructions to reconsider this case in light of Hudson.

IV

For the foregoing reasons, we VACATE and REMAND for reconsideration.