UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-40017
(Summary Calendar)
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TIMOTHY A AGUILAR,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION, Company Departments;
UNIDENTIFIED WOODS, Sergeant, Coffield Unit;
UNIDENTIFIED WILBANKS, Sergeant, Coffield
Unit,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:95-CV-677)
July 25, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Timothy Aguilar, proceeding pro se, appeals the district
court’s denial of his Fed. R. Civ. P. 60(b) motion for relief from
*
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that this opinion should not be published and is not precedent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.
final judgment. Aguilar and several other prisoners filed an
action in district court under 42 U.S.C. § 1983, asserting various
civil rights violations. The district court dismissed Aguilar’s
claims with prejudice in an interlocutory order. Four months
later, on June 14, 1996, the district court dismissed the claims of
the last remaining plaintiff and entered a final judgment in the
action. None of the plaintiffs filed a notice of appeal from the
judgment.
On November 12, 1996, Aguilar filed his Rule 60(b) motion,
asserting that he was denied the ability to appeal the dismissal of
his claims due to the district court’s failure to notify him of the
entry of final judgment. Aguilar claimed that he learned of the
judgment only after visiting with one of the other plaintiffs. In
support of his motion, Aguilar attached a sworn affidavit by the
prison mailroom supervisor stating that Aguilar had not received
any legal mail in the month following the date of entry of the
judgment. The district court denied the motion on the grounds that
a Rule 60(b) motion may not be used to extend the time for filing
a notice of appeal and that Aguilar otherwise failed to meet the
requirements of Fed. R. App. P. 4(a)(5) for enlargement of time for
appeal.
Aguilar argues on appeal that the district court abused its
discretion because it failed to consider his Rule 60(b) motion as
a Fed. R. App. P. 4(a)(6) motion to reopen the time for appeal.
Rule 4(a)(6) states:
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[t]he district court, if it finds (a) that a
party entitled to notice of the entry of a
judgment or order did not receive such notice
from the clerk or any party within 21 days of
its entry and (b) that no party would be
prejudiced, may, upon motion filed within 180
days of entry of the judgment or order or
within 7 days of receipt of such notice,
whichever is earlier, reopen the time for
appeal for a period of 14 days from the date
of entry of the order reopening the time for
appeal.
We cannot determine at this stage whether the district court abused
its discretion because it is unclear from the record whether
Aguilar filed his motion within seven days of learning of the
judgment from his co-plaintiff, or whether he otherwise satisfies
the requirements of Rule 4(a)(6).
Accordingly, we REMAND the case to enable the district court
to determine whether Aguilar qualifies for relief under Rule
4(a)(6), and, if he does qualify, whether, in the court’s
discretion, such relief should be granted.
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