Clayton v. Scott

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 97-40483
Conference Calendar

CLAVIS A. CLAYTON,

Plaintiff-Appellant,

versus

WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Defendant-Appellee.

- - - - - - - - - -
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:96-CV-722
- - - - - - - - - -
August 14, 1997
Before KING, HIGGINBOTHAM, and DUHÉ, Circuit Judges.

PER CURIAM:*

Clavis A. Clayton, a/k/a “Iman Isa al Masih,” Texas prisoner

#646468, filed a notice of appeal on April 17, 1997, from the

district court’s January 17, 1997, dismissal of his complaint

under the Religious Freedom Restoration Act (RFRA) and the

district court’s April 7, 1997, denial of his motion for a new

trial. This court must examine the basis of its jurisdiction on

its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660

*
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that this opinion should not be published and is not precedent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.
 No. 97-40483
-2-

(5th Cir. 1987). A timely notice of appeal is a prerequisite for

the exercise of jurisdiction by this court. United States v.

Carr, 979 F.2d 51, 55 (5th Cir. 1992).

Because Clayton filed his motion for a new trial more than

ten days after entry of the January 17, 1997, judgment, it is

treated as a motion under Fed. R. Civ. P. 60(b). Harcon Barge

Co. v. D. & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir.

1986)(en banc). A Rule 60(b) motion does not suspend the running

of the 30-day appeal period and does not bring up the underlying

judgment for consideration. See Fed R. App. P. 4(a)(4); Matter

of Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th

Cir. 1984). Because Clayton did not file his notice of appeal

until April 17, 1997, more than 60 days after the January 17,

1997, order, this court is without jurisdiction to review the

district court's judgment dismissing Clayton's RFRA complaint.

See Fed. R. App. P. 4(a)(4); Aucoin v. K-Mart Apparel Fashion

Corp., 943 F.2d 6, 8 (5th Cir. 1991).

Jurisdiction in this case is limited to review of the

district court’s denial of Clayton’s motion for new trial. See

Aucoin, 943 F.2d at 8. Because Clayton failed to address in his

brief any error in the district court’s denial of his Rule 60(b)

motion, he has abandoned the only issue before the court.

Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987).
 No. 97-40483
-3-

Clayton’s motions for injunction and his motion to stay the

proceedings to correct the brief are DENIED.

Clayton’s appeal is without arguable merit and thus

frivolous. See Howard v. King, 707 F.2d. 215, 219-20 (5th Cir.

1983). Because the appeal is frivolous, it is DISMISSED. See

5th Cir. R. 42.2. We caution Clayton that any additional

frivolous appeals filed by him will invite the imposition of

sanctions. To avoid sanctions, Clayton is further cautioned to

review any pending appeals to ensure that they do not raise

arguments that are frivolous.

APPEAL DISMISSED; SANCTION WARNING ISSUED; MOTIONS DENIED.