Ewing v. Burke, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-60434
Summary Calendar

RICKY R. EWING,

Plaintiff–Appellant,

v.

DOCTOR J. BURKE, Wilkinson County Correctional Facility; N. REED,
HSA/Wilkinson County Correctional Facility,

Defendants–Appellees.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:19-CV-34

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges.
PER CURIAM:
*

Ricky R. Ewing, Mississippi prisoner # 34353, seeks authorization to
proceed in forma pauperis (IFP) following the district court’s dismissal without
prejudice of his 42 U.S.C. § 1983 complaint and denial of leave to proceed IFP
on appeal. Both Ewing’s notice of appeal and his motion in the district court
for leave to proceed IFP on appeal were stamped as filed by the district court

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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
FILED
February 4, 2020

Lyle W. Cayce
Clerk
Case: 19-60434 Document: 00515297038 Page: 1 Date Filed: 02/04/2020

No. 19-60434
2
on June 17, 2019, which was more than 30 days after the May 13, 2019 entry
of the district court’s judgment. See FED. R. APP. P. 4(a)(1)(A); Mosley v. Cozby,
813 F.2d 659, 660 (5th Cir. 1987). This case is REMANDED to the district court
for the limited purpose of making a determination whether Ewing’s notice of
appeal was otherwise timely under Federal Rule of Appellate Procedure 4(c)(1),
and, if the district court determines that the appeal was untimely, whether the
deadline for filing the notice of appeal is extended under Federal Rule of
Appellate Procedure 4(a)(5).
Case: 19-60434 Document: 00515297038 Page: 2 Date Filed: 02/04/2020