Cordellra McCaley v. Pelicia Hall, Commissioner, e, No. 17-60638 (5th Cir. 2018)
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The court issued a subsequent related opinion or order on September 6, 2019.
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Case: 17-60638 Document: 00514756693 Page: 1 Date Filed: 12/11/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-60638 Summary Calendar FILED December 11, 2018 Lyle W. Cayce Clerk CORDELLRA MCCALEY, Plaintiff-Appellant v. PELICIA HALL, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS; JERRY WILLIAMS, Deputy Commissioner; TIMOTHY MORRIS, Warden, Mississippi Department of Corrections; OFFICER HUGHES, Correction Officer; M. S. CARTER, Case Manager; MR. BANKS, Deputy Warden, Defendants-Appellees Appeal from the United States District Court for the Northern District of Mississippi USDC No. 4:16-CV-111 Before JOLLY, COSTA, and HO, Circuit Judges. PER CURIAM: * Cordellra McCaley, Mississippi prisoner # 164032, appeals the summary judgment dismissal of his 42 U.S.C. § 1983 civil rights action alleging claims of deliberate indifference to his safety, deliberate indifference to his serious medical needs, and failure to properly classify him based on the defendants’ 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 17-60638 Document: 00514756693 Page: 2 Date Filed: 12/11/2018 No. 17-60638 actions before and after McCaley was assaulted and seriously injured by another inmate. McCaley also moves for appointment of counsel on appeal. “This Court must examine the basis of its jurisdiction, on its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). An appellate court’s jurisdiction vests upon filing of the notice of appeal. Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). “[A]n appeal filing deadline prescribed by statute will be regarded as jurisdictional.” Hamer v. Neighborhood Hous. Servs. of Chicago, 138 S. Ct. 13, 16 (2017) (internal quotation marks and citation omitted). In a civil matter, such as this one, notice of appeal must be filed within 30 days of the entry of the judgment or order being appealed. 28 U.S.C. § 2107(a); FED. R. APP. P. 4(a)(1)(A). Although McCaley’s notice of appeal was filed more than four months after the Rule 4(a) deadline, we construe it as a timely motion to reopen the appeal filing period. See § 2107(c); FED. R. APP. P. 4(a)(6). Accordingly, IT IS ORDERED that the case be REMANDED to the district court for the limited purpose of determining whether McCaley’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. McCaley’s motion to appoint counsel is CARRIED WITH THE CASE. LIMITED REMAND ORDERED. 2
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