Case: 17-10053 Document: 00514300146 Page: 1 Date Filed: 01/09/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10053
Fifth Circuit
FILED
Summary Calendar January 9, 2018
Lyle W. Cayce
JEFFREY SCOTT QUINTANA, Clerk
Plaintiff-Appellant
v.
UNKNOWN AGENTS, Fort Worth Police; S. KELM, Fort Worth Police Officer;
CITY OF FORT WORTH, TEXAS,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:14-CV-472
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Procedure 4(a)(1)(A),
the notice of appeal in a civil case must be filed within thirty days of entry of
judgment. In this civil rights case filed by a state prisoner, the district court
entered a final judgment on November 2, 2016. Therefore, the final day for
filing a timely notice of appeal was December 2, 2016. See § 2107(a); FED.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10053 Document: 00514300146 Page: 2 Date Filed: 01/09/2018
No. 17-10053
R. APP. P. 4(a)(1)(A). Quintana’s pro se notice of appeal was postmarked
January 9, 2017. See Brown v. Taylor, 829 F.3d 365, 368 (5th Cir. 2016).
Section 2107 and Rule 4, however, provide that the district court may
reopen the time to file an appeal for 14 days if it finds that the moving party
did not receive notice of the judgment appealed within 21 days of entry, the
motion to reopen is filed within the earlier of 180 days after the judgment or
14 days after the party receives notice of its entry, and the court finds that no
party would be prejudiced by the appeal. § 2107(c); FED. R. APP. P. 4(a)(6). In
a pleading signed January 5, 2017, Quintana referenced the district court
order, suggested that he may not have timely received a copy of the order, and
identified errors in the district court opinion and order. The district court did
not address this pleading, Quintana’s receipt of the judgment, or the timeliness
of the notice of appeal.
We treat the pleading signed January 5, 2017, which Quintana
characterized as an affidavit, as his notice of appeal and request to reopen the
time for appeal. See Bailey v. Cain, 609 F.3d 763, 765 (5th Cir. 2010).
Accordingly, we remand the case to the district court to determine the
circumstances under which Quintana received notice that final judgment had
been entered, when he received that notice, when he placed his notice of appeal
and motion to reopen in the prison mail system, and whether any party would
be prejudiced by Quintana’s appeal. Upon making these findings, the district
court shall return the case to this court for further proceedings, or dismissal,
as may be appropriate. The motion for appointment of counsel is held in
abeyance with the appeal.
REMANDED.
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