Gary Kennedy v. Rick Thaler, Director

Case: 10-20462 Document: 00511521814 Page: 1 Date Filed: 06/27/2011

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
June 27, 2011
No. 10-20462
Summary Calendar Lyle W. Cayce
Clerk

GARY L. KENNEDY,

Plaintiff-Appellant

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION; CHARLES A. WILLIAMSON,
Senior Warden, Texas Department of Criminal Justice - Correctional
Institutions Division, Thomas Goree Unit; DAVID C. BONE, Assistant Warden,
Texas Department of Criminal Justice - Correctional Institutions Division,
Thomas Goree Unit; PATRICK M. MARION, Major of Corrections, Texas
Department of Criminal Justice - Correctional Institutions Division, Thomas
Goree Unit; KENNETH JONES, Captain of Corrections, Texas Department of
Criminal Justice - Correctional Institutions Division, Thomas Goree Unit;
DOROTHEIA L. ROBERTS, Lieutenant of Corrections, Texas Department of
Criminal Justice - Correctional Institutions Division, Thomas Goree Unit;
KENDRA D. SHELLY, Case Manager II, Texas Department of Criminal Justice
- Correctional Institutions Division, Thomas Goree Unit; CHEYENNE C. SHAW,
Unit Grievance Investigator, Texas Department of Criminal Justice -
Correctional Institutions Division, Thomas Goree Unit; T. RODDEY, Regional
Grievance Coordinator, Texas Department of Criminal Justice - Correctional
Institutions Division, Thomas Goree Unit; JOHN W. CHRISTIAN,

Defendants-Appellees

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CV-1878
Case: 10-20462 Document: 00511521814 Page: 2 Date Filed: 06/27/2011

No. 10-20462

Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
Gary L. Kennedy, Texas prisoner # 610571, appeals the district court’s
judgment dismissing his 42 U.S.C. § 1983 suit as frivolous. Our review of the
record, however, shows that it is yet not appropriate for us to consider his
arguments concerning the dismissal of his suit.
Regardless whether the parties address the issue, this court must always
be cognizant of the question whether it has jurisdiction to consider an action.
Hernandez v. Thaler, 630 F.3d 420, 424 & n.11 (5th Cir. 2011). Within 28 days
of entry of judgment, Kennedy filed a second amended complaint that is best
classed as arising under Federal Rule of Civil Procedure 59(e) and that renders
his notice of appeal ineffective until the district court rules on it. FED. R. APP.
P. 4(a)(4)(B)(i). Accordingly, this case must be remanded, and the record
returned, so that the district court may rule on Kennedy’s postjudgment motion
“as expeditiously as possible, consistent with a just and fair disposition thereof.”
See Burt v. Ware, 14 F.3d 256, 261 (5th Cir.1994). We retain jurisdiction over
the appeal except for the purposes of the limited remand. Kennedy’s appeal
shall be held in abeyance until his notice of appeal is effective. The clerk of this
court is instructed to process the appeal immediately upon the return of this case
from the district court.
LIMITED REMAND; APPEAL HELD IN ABEYANCE.

*
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.