The opinion
Case: 15-20007 Document: 00513704519 Page: 1 Date Filed: 10/04/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-20007 FILED
Summary Calendar October 4, 2016
Lyle W. Cayce
Clerk
JOE FREDERICK,
Plaintiff-Appellant
v.
WARDEN VERNON PITTMAN; MAJOR MARK R. CLARKE; LIEUTENANT
JAMES POWERS; CORRECTIONAL OFFICER AGGREY LIHALAKHA;
KEHINDE LASISI; SUSAN DOSTAL; UNIT DOCTOR EDGAL HULIPAS;
PHYSICIAN’S ASSISTANT MELANIE POTTER; PHYSICIAN’S ASSISTANT
SANDRA SMOCK; REGISTERED NURSE MARY KUNTHARA; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTION
DIVISION; UNIVERSITY OF TEXAS MEDICAL BRANCH; LICENSED
VOCATIONAL NURSE ADMARIE SCOTT,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CV-1455
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-20007 Document: 00513704519 Page: 2 Date Filed: 10/04/2016
No. 15-20007
Joe Frederick filed this civil action in forma pauperis and pro se, alleging
a violation of his constitutional rights under 42 U.S.C § 1983 and a violation of
the Americans with Disabilities Act. Frederick alleged that the defendants
were deliberately indifferent to his medical needs and violated the ADA when
they delayed his access to medical care after he broke his leg while incarcerated
in the Jester III Unit of the Texas Department of Criminal Justice. Frederick
named as defendants twelve individuals employed at the Unit, including the
warden, correctional officers, and medical personnel.
After screening all of the pleadings pursuant to 28 U.S.C. § 1915A, the
district court ordered defendants Scott, Smock, Kunthara, and Dostal to
answer Frederick’s § 1983 complaint. It dismissed all other defendants and
complaints. On September 23, 2014, the district court granted summary
judgment on the grounds of qualified immunity in favor of Scott, Smock,
Kunthara, and Dostal. Frederick moved for a new trial, which the district court
denied on October 23, 2014. On December 17, 2014, the district court denied
Frederick’s second post-judgment motion. Frederick filed a notice of appeal in
this Court on December 30, 2014.
As a threshold issue, we must examine the basis of our jurisdiction.
Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is
mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205,
214 (2007). To the extent that Frederick appeals from the grant of summary
judgment on September 23, 2014 or the denial of his first post-judgment motion
on October 23, 2014, his notice of appeal was not timely. We therefore lack
jurisdiction to review those judgments. This portion of the appeal is
DISMISSED.
Frederick’s appeal was timely as to the December 17, 2014 denial of his
second post-judgment motion. Only the denial of this motion and not the
2
Case: 15-20007 Document: 00513704519 Page: 3 Date Filed: 10/04/2016
No. 15-20007
original judgment is subject to our review. See Bailey v. Cain, 609 F.3d 763,
767 (5th Cir. 2010). We review the denial of a Rule 60(b) motion for relief from
judgment for abuse of discretion. Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir.
2013). “A district court abuses its discretion if it bases its decision on an
erroneous view of the law or on a clearly erroneous assessment of the evidence.”
Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (quoting Kennedy v. Texas
Utils., 179 F.3d 258, 265 (5th Cir. 1999)).
Upon examination of the record, we see no indication that the district
court abused its discretion in denying Frederick’s motion for relief from
summary judgment. Frederick also has not shown that the district court
abused its discretion by failing to grant post-judgment relief from the sua
sponte dismissal of all of his claims against the remaining named defendants
in the case. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). The judgment of
the district court is AFFIRMED.
Frederick’s motions for appointment of counsel on appeal and default
judgment are DENIED.
AFFIRMED IN PART; DISMISSED IN PART; MOTIONS DENIED.
3