Changes v. Vance, et al

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40425
Summary Calendar
MICHAEL K. CHANGES, ET AL, Plaintiffs,
BERTRAND BROWN,
Plaintiff-Appellant,
versus
CAROL VANCE, Chairman Texas Board of Criminal Justice; WAYNE
SCOTT, Director, Texas Department of Criminal Justice
Institutional Division; TIMOTHY WEST, Warden; CAREY STAPLES,
Assistant Warden; GARLAND FLAKES, Assistant Warden; TROY SIMPSON,
Major; JACK MANGRUM, Captain; BILLY FOREST, Lieutenant; JOHN DOE,
#1, #2, #3, #4; JOHN ALLEN, Lieutenant,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:95-CV-1110
--------------------
June 16, 2000
Before GARWOOD, DeMOSS, AND PARKER, CIRCUIT JUDGES.
PER CURIAM:*
Bertrand Brown, Texas prisoner # 296134, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 action as
frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
This court has a duty, sua sponte, to determine whether it
has appellate jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). A notice of appeal in a civil case is required

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No. 99-40425
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to be filed within 30 days of the date of entry of the judgment.
Fed. R. App. P. 4(a).
Because the final judgment was entered in this case on
December 22, 1998, Brown had until January 21, 1999, to file his
notice of appeal. The earliest indication of a notice of appeal
being filed by Brown is in the Clerk’s letter stating that it had
received his out of time notice of appeal on February 24, 1999.
The document that was treated as Brown’s notice of appeal in this
case was received in this court and thus considered filed on
March 23, 1999. Either date is too late for the documents filed
to be considered as a timely notice of appeal. Brown’s appeal is
DISMISSED for lack of appellate jurisdiction.
Further, given the frivolity of the underlying lawsuit, the
obvious lateness of his notice of appeal filed in the wrong
court, and the fact that this appeal has been pending on the
docket of this court since March 1999 due to Brown’s failure to
make the necessary financial arrangements, we also DISMISS this
appeal as frivolous pursuant to 5th Cir. R. 42.2. This dismissal
shall count as a strike under 28 U.S.C. § 1915(g), in addition to
the strike for the district court’s dismissal as frivolous. See
Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).
APPEAL DISMISSED.

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