* 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that this opinion should not be published and is not precedent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. 01-10829

Conference Calendar

 

JOHN THOMAS BAGLEY,

Plaintiff-Appellant,

versus

BOARD OF DIRECTORS - FARMERS 

NATIONAL BANK; GARY L. JOHNSON, 

DIRECTOR, TEXAS DEPARTMENT OF 

CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, 

FIRST NAME UNKNOWN FIGUEROA, Warden; 

CITY OF RULE POLICE DEPARTMENT; 

FIRST NAME UNKNOWN ARNOLD, Warden; 

FIRST NAME UNKNOWN BROCK, Warden; 

FIRST NAME UNKNOWN GAYLORD, Captain; 

PATRICK PACE, CEO/President of Farmers 

National Bank; REGON JONES, 

Vice President of Cashiers, 

Farmers National Bank,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:00-CV-89

--------------------

December 11, 2001

Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

John Thomas Bagley challenges the district court’s dismissal

as frivolous of his 42 U.S.C. § 1983 lawsuit. This court must

raise, sua sponte, the issue of its own jurisdiction, if
No. 01-10829

-2-

necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). 

A timely notice of appeal is a mandatory precondition to the

exercise of appellate jurisdiction. See Nelson v. Foti, 707 F.2d

170, 171 (5th Cir. 1983). Federal Rule of Appellate Procedure

4(a)(1) requires that the notice of appeal in a civil action be

filed within 30 days of entry of the judgment being appealed. 

Fed. R. App. P. 4(a)(1)(A). Bagley did not file a notice of

appeal within 30 days of the entry of judgment. 

Instead, almost one month after the district court entered

judgment dismissing his civil rights lawsuit, Bagley filed

“objections,” which are construed as a Rule 60(b) motion. See

Fed. R. Civ. P. 60(b); Harcon Barge Co., Inc. v. D & G Boat

Rentals, Inc., 784 F.2d 665, 669 (5th Cir. 1986) (en banc). A

Rule 60 motion filed more than ten days after the entry of

judgment does not suspend the time for filing an appeal of the

underlying judgment. Huff v. Int’l Longshoremen’s Ass’n, Local

No. 24, 799 F.2d 1087, 1089-90 (5th Cir. 1986). The denial of

such a motion does not bring up the underlying judgment for

review and is not a substitute for appeal. In re Ta Chi

Navigation (Panama) Corp. S.A., 728 F.2d 699, 703 (5th Cir.

1984). 

Bagley’s notice of appeal, filed within 30 days of the

district court’s order denying his Rule 60 motion, is untimely as

to the underlying judgment and confers on this court jurisdiction

to consider the order denying the Rule 60 motion only. See In re

Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d at 703. However,

Bagley briefs no argument that the district court’s denial of
No. 01-10829

-3-

that motion was error, and he has thus waived the sole ground for

appeal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.

1993). Bagley’s appeal is without arguable merit, is frivolous,

and is therefore DISMISSED. See Howard v. King, 707 F.2d 215,

219-20 (5th Cir. 1983); 5TH CIR. R. 42.2. Bagley is CAUTIONED

that the pursuit of frivolous appeals in the future, even appeals

in which he has paid the full filing fee, will invite the

imposition of sanctions.

APPEAL DISMISSED; SANCTIONS WARNING ISSUED.