* Pursuant to 5 TH C IR . 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that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

** Spears v. McCotter , 766 F.2d 179 (5th Cir. 1985). United States Court of Appeals

Fifth Circuit 

## FILED September 17, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-40514 Summary Calendar

DAVID LYNN WALLEN, Plaintiff-Appellant,

versus MICHAEL J. OLSEN, Sergeant; ROBERT A. WALKER, Sergeant; GILBERT ENNIS, Lieutenant; JOHN R. MCDANIEL, Lieutenant; CHRISTOPHER W. AGAPIOU, Sergeant; CORNELIUS E. SMITH, Captain; NEAL D. WEBB, Assistant Warden; ERIC L. FRUGE, Correctional Officer III; KEVIN L. CARLVIN, Sergeant; TALIESIN R. STERN, Sergeant; GARY L. JOHNSON; STATE OF TEXAS, Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:02-CV-323

-------------------- Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM: * David Lynn Wallen, Texas prisoner # 341807, proceeding in forma pauperis , filed a pro se complaint pursuant to 42 U.S.C. § 1983 and consented to have his case determined by a magistrate judge. After conducting a Spears ** hearing to more fully developNo. 03-40514 -2- Wallen’s claims, the magistrate judge dismissed the complaint with regard to all defendants as frivolous and for failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). Specifically, the magistrate judge dismissed Wallen’s claims that the defendants had been deliberately indifferent to his serious medical needs by feeding him non-diabetic food loaves. This court must examine the basis of its jurisdiction on its own motion if necessary. See Mosley v. Cozby , 813 F.2d 659, 660 (5th Cir. 1987). Under F ED . R. A PP . P. 4(a)(4), the filing of a timely F ED . R. C IV . P. 59(e) motion renders a notice of appeal ineffective until an order is entered disposing of the motion. A motion requesting reconsideration of the judgment is treated as a Rule 59 motion for purposes of Rule 4(a)(4), regardless of the label applied to the motion, if it is made within the 10-day limit for Rule 59 motions. See Mangieri v. Clifton , 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); Harcon Barge Co. v. D & G Boat Rentals, Inc. , 784 F.2d 665, 667 (5th Cir. 1986) (en banc). Although styled as “objections” to the judgment, Wallen’s post-judgment filing challenges the magistrate judge’s dismissal of his deliberate-indifference claim and contains a renewed argument with respect to his conditions-of-confinement claim. Accordingly, despite the label affixed by this pro se litigant, the post-judgment filing must be regarded as a F ED . R. C IV . P. 59(e) motion because it was filed within 10 days of the entry of judgment. See Harcon Barge , 784 F.2d at 667.No. 03-40514 -3- Accordingly, this case must be remanded, and the record returned to the magistrate judge, so that the magistrate judge may rule upon Wallen’s Rule 59(e) as expeditiously as possible, consistent with a just and fair disposition thereof. See Burt
v. Ware , 14 F.3d 256, 260-61 (5th Cir. 1994). This court retains jurisdiction over the appeal except for the purposes of the limited remand stated above.

LIMITED REMAND.