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that this opinion should not be published and is not precedent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

** 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 develop
No. 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 FED. R. APP. P. 4(a)(4), the filing of a

timely FED. R. CIV. 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 FED. R. CIV. 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.