Howard Carroll v. John Rupert

Case: 15-41457 Document: 00513904504 Page: 1 Date Filed: 03/09/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-41457 FILED
Summary Calendar March 9, 2017
Lyle W. Cayce
Clerk
HOWARD F. CARROLL,

Plaintiff-Appellant

JOHN RUPERT, Warden, Coffield Unit; MICHAEL ROARK, Lieutenant,
Coffield Unit; MICHAEL COLLUM, Lieutenant, Coffield Unit; GUY
FERGUSON, Lieutenant, Coffield Unit; BRETT BUCKLEY; et al,

Defendants-Appellees

Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:15-CV-569

Before BENAVIDES, PRADO, and COSTA, Circuit Judges.
PER CURIAM: *
The court sua sponte grants rehearing, withdraws its previous opinion
in this matter, Carroll v. Rupert, No. 15-41457, 2017 WL 763843 (5th Cir. Feb.
24, 2017) (unpublished), and substitutes the following.
Howard F. Carroll, Texas prisoner # 1067360, appeals the dismissal,
without prejudice, of his 42 U.S.C. § 1983 complaint for want of prosecution

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41457 Document: 00513904504 Page: 2 Date Filed: 03/09/2017

No. 15-41457

and failure to obey an order. Carroll argues that the district court erred in
dismissing his complaint. He also challenges the magistrate judge’s denial of
his motion for appointment of counsel. He further requests the appointment
of appellate counsel.
The district court construed Carroll’s October 2015 objections to the
magistrate judge’s report as a motion for relief from judgment, and it granted
relief, vacating its order of dismissal and judgment. We construe the district
court’s action as arising under Federal Rule of Civil Procedure 59(e). See
Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). In view of the
foregoing, this appeal is moot. See Ctr. for Biological Diversity, Inc. v. BP
America Prod. Co., 704 F.3d 413, 431 (5th Cir. 2013).
Accordingly, the appeal is DISMISSED AS MOOT. Carroll’s request for
appointment of appellate counsel is DENIED AS MOOT.