Case: 11-20152     Document: 00511626854         Page: 1     Date Filed: 10/07/2011




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

                                                                            FILED
                                                                          October 7, 2011
                                     No. 11-20152
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

NIKITA VAN GOFFNEY,

                                                  Plaintiff-Appellant

v.

J. SAUCEDA; C. DAVIDSON; T. TAYLOR; J. EVERITT; G. HARDAY;
SERGEANT M. HOLT; J. FERRARO; T. PITZER; G. HARDAGE; COUNTY OF
MONTGOMERY; MICHAEL MCDOUGAL; JIM PREWITT; CITY OF CONROE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:02-CV-2638


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Nikita Van Goffney, Texas prisoner # 1582354, moves for appointment of
counsel and production of transcripts at Government expense on his appeal from
the district court’s orders denying his motions for relief pursuant to Federal Rule
of Civil Procedure 60(b) and his motion for a preliminary injunction. For the
reasons below, Goffney’s motions are held in abeyance.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20152       Document: 00511626854     Page: 2   Date Filed: 10/07/2011

                                     No. 11-20152

          This court must consider the basis of appellate jurisdiction on its own
motion if necessary. Witherspoon v. White, 

, 401 (5th Cir. 1997).
Before he filed a notice of appeal from the order denying injunctive relief,
Goffney, on January 28, 2011, filed objections to that order in which he sought
reconsideration of his motion for injunctive relief, albeit in a perfunctory
manner. Goffney’s request in his objections for reconsideration of the district
court’s nonfinal order denying injunctive relief, construed liberally, see Haines
v. Kerner, 

, 520 (1972), arose under Rule 60(b), as that rule
contemplates motions seeking reliefs from nonfinal orders. See FED. R. CIV. P.
60(b). Goffney’s objections were filed within 28 days of the order denying
injunctive relief, and the constructive Rule 60(b) motion therefore tolled the 30-
day period for filing a timely notice of appeal until a ruling is issued on the
constructive motion. See FED. R. APP. P. 4(a)(4)(A)(vi). The constructive motion
also rendered Goffney’s notice of appeal ineffective until after such a ruling is
issued. See Rule 4(a)(4)(B)(i). Goffney’s case thus is remanded for the limited
purpose of having the district court rule on Goffney’s January 28, 2011,
objections, construed as a motion for relief from the order denying injunctive
relief.
          As for the denial of the other Rule 60(b) motions Goffney seeks to appeal,
the claims remanded by this court remain pending in the district court; there is
no final judgment from which Goffney may appeal. The district court’s order
denying the Rule 60(b) motions does not fall within any of the appealable
interlocutory orders set forth in 28 U.S.C. § 1292(a), which is limited to certain
interlocutory orders regarding injunctions, receiverships, and admiralty cases.
Moreover, the district court did not certify its ruling as final or certify any
questions for appeal.
          We also conclude that this appeal does not meet the test for application of
the collateral order doctrine. See Flanagan v. United States, 

, 265
(1984); see also United States v. Edwards, 

, 462 (5th Cir. 2000).

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  Case: 11-20152    Document: 00511626854     Page: 3   Date Filed: 10/07/2011

                                 No. 11-20152

Thus, without reaching the merits of his appeal, we conclude that we lack
jurisdiction over the appeal from the denial of those motions.
      MOTIONS HELD IN ABEYANCE; LIMITED REMAND IN PART;
APPEAL DISMISSED IN PART.




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