Case: 13-20324      Document: 00512571144         Page: 1    Date Filed: 03/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 13-20324                               March 24, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
SAMUEL MAYO,

                                                 Plaintiff - Appellant
v.

PASADENA POLICE DEPARTMENT; HARRIS COUNTY SHERIFF
DEPARTMENT,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-3123


Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM:*
       Samuel Mayo, proceeding pro se, filed a lawsuit against the Pasadena
Police Department and the “Harris County Sheriff Department” over his May
17, 2010 arrest for driving while intoxicated (DWI). Mayo alleged that the
defendants had violated his constitutional rights and Article 21.11 of the Texas
Code of Criminal Procedure.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-20324         Document: 00512571144           Page: 2     Date Filed: 03/24/2014



                                             No. 13-20324
       The Pasadena Police Department and the Harris County Sheriff’s
Department filed a motion to dismiss under Federal Rule of Civil Procedure
(FRCP) 12(b)(6). Meanwhile, Mayo filed motions for leave to file first, second,
and third amended complaints, and the defendants responded.
       On April 8, 2013, the district court denied Mayo’s motions for leave to
amend his complaint and also dismissed Mayo’s lawsuit with prejudice and
entered final judgment. On May 10, 2013, Mayo filed a motion to reinstate the
case. On May 28, 2013, the district court denied Mayo’s motion to reinstate,
which the district court construed as a FRCP 60 motion for relief from
judgment. On June 10, 2013, Mayo filed a notice of appeal from the district
court’s April 8, 2013 order and final judgment.
       Under Federal Rule of Appellate Procedure 4(a)(1)(A), a notice of appeal
must usually be filed within 30 days of the judgment or order. 1 However, there
are certain exceptions to this rule. As relevant to this appeal, under Rule
4(a)(4), if a party files a motion “for relief under [FRCP] 60 . . . no later than 28
days after judgment is entered,” 2 then “the time to file an appeal runs for all
parties from the entry of the order disposing of the last such remaining
motion.” 3 In other words, the 30-day deadline begins to run after the resolution
of the FRCP 60 motion.
       To the extent Mayo tries to appeal the April 8th order and final
judgment, he has failed to timely appeal. Mayo did not meet the 30-day
deadline set out by Rule 4(a)(1)(A). The notice of appeal was filed on June 10,


       1   Fed. R. App. P. 4(a)(1)(A) provides:
                In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and
                4(c), the notice of appeal required by Rule 3 must be filed with
                the district clerk within 30 days after entry of the judgment or
                order appealed from.

R. App. P. 4(a)(4)(A)(vi).
       3   Fed. R. App. P. 4(a)(4)(A).
                                                  2
     Case: 13-20324       Document: 00512571144          Page: 3     Date Filed: 03/24/2014



                                       No. 13-20324
2013—63 days after the order and final judgment. Moreover, Mayo’s motion
to reinstate, which the district court construed as a FRCP 60 motion, failed to
delay the running of the deadline clock under Rule 4(a)(4). Mayo filed his
FRCP 60 motion on May 10, 2013—32 days after the judgment. As a result,
Mayo’s notice of appeal filed on June 10, 2013 was untimely. Since a timely
filed notice of appeal is a jurisdictional prerequisite to an appellate court’s
exercise of jurisdiction, 4 we lack jurisdiction over the appeal as to the April 8th
order and final judgment.
       To the extent Mayo tries to appeal the May 28th order denying his FRCP
60 motion, his appeal still fails. Rule 3(c)(1)(B) requires that a notice of appeal
“designate the judgment, order or part thereof being appealed.” 5                        Rule
4(a)(4)(B)(ii) provides that “[a] party intending to challenge an order disposing
of any motion listed in Rule 4(a)(4)(A), or a judgment’s alteration or
amendment upon such a motion, must file a notice of appeal, or an amended
notice of appeal—in compliance with Rule 3(c)—within the time prescribed by
this Rule measured from the entry of the order disposing of the last such
remaining motion.” 6 Mayo’s notice of appeal states that it is an appeal “from
the dismissal hearing (Docket Entries No. 5, 7) that his lawsuit was dismissed
with prejudice and leave to amend would be futile. This is a final judgment
signed by Honorable Judge Lee H. Rosenthal on April 08, 2013.” Thus, Mayo
only designated the April 8th order and final judgment, and not the May 28th
order. As a result, we lack jurisdiction over the appeal as to the May 28th
order as well. 7




       4 Bowles v. Russell, 

, 209–10 (2007).
       5 Fed. R. App. P. 3(c)(1)(B).
       6 Fed. R. App. P. 4(a)(4)(B)(ii).
       7 See Leggett v. Williams, 277 F. App’x 498, 501–02 (5th Cir. 2008) (per curiam); Taylor

v. Johnson, 

, 474 (5th Cir. 2001) (per curiam) (“In general, we require a separate
                                              3
     Case: 13-20324       Document: 00512571144          Page: 4     Date Filed: 03/24/2014



                                       No. 13-20324
       It is true that even though we require a separate notice of appeal as to
the FRCP 60 motion, “[w]e construe this requirement liberally” 8 and that “a
brief may serve as the ‘functional equivalent’ of an appeal if it is filed within
the time specified by [Rule 4] and gives the notice required by [Rule 3].” 9 Even
under this liberal construction, however, Mayo’s brief does not constitute a
timely notice of appeal as to the May 28th order. The FRCP 60 motion was
denied on May 28, 2013, but Mayo’s brief was not filed until September 26,
2013 at the earliest. This does not comply with the 30-day deadline under Rule
4(a)(1)(A). Therefore, we still lack jurisdiction over the May 28th order.
       Plaintiff’s appeal is DISMISSED for lack of jurisdiction.




notice of appeal to preserve the issue for our review [when a party wishes to appeal the denial
of a FRCP 60(b) motion].”).
        8 

.
        9