Herron v. Patrolman #1, 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
November 18, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-20590
Summary Calendar
LARRY LEONARD HERRON,
Plaintiff-Appellant,
versus
PATROLMAN # 1; PATROLMAN # 2; DEPUTY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-3415
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
This court must examine the basis of its jurisdiction on
its own motion if necessary. Mosley v. Cozby, 813 F.2d 659, 660
(5th Cir. 1987). Rule 4(a)(1), FED. R. APP. P., requires that
the notice of appeal in a civil action be filed within 30 days
of entry of the judgment. In this civil rights action, the final
judgment was entered on April 24, 2003. The final day for filing
a timely notice of appeal was May 27, 2003. See FED. R. APP. P.
26(a)(3) (last day of period is excluded if it is Saturday,

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Sunday, or legal holiday). Herron dated his pro se notice of
appeal May 5, 2003 (within the appeal period), but the notice is
stamped as filed on June 2, 2003 (outside the appeal period).
A prisoner’s pro se notice of appeal is deemed timely filed if
deposited in the institution’s internal mail system on or before
the last day for filing. See FED. R. APP. P. 4(c)(1). As it
cannot be determined from the record in this case whether Herron
deposited his notice of appeal in the prison mail system on or
before May 27, 2003, the case must be remanded to the district
court to make such a determination. See Thompson v. Montgomery,
853 F.2d 287, 288 (5th Cir. 1988).
Upon making this determination, the district court shall
return the case to this court for further proceedings, or
dismissal, as may be appropriate.
Herron’s motion for appointment of counsel is DENIED at this
time.
REMANDED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.

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