IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-20007

Summary Calendar

JOE FREDERICK,

Plaintiff-Appellant

v.

WARDEN VERNON PITTMAN; MAJOR MARK R. CLARKE; LIEUTENANT 

JAMES POWERS; CORRECTIONAL OFFICER AGGREY LIHALAKHA; 

KEHINDE LASISI; SUSAN DOSTAL; UNIT DOCTOR EDGAL HULIPAS; 

PHYSICIAN’S ASSISTANT MELANIE POTTER; PHYSICIAN’S ASSISTANT 

SANDRA SMOCK; REGISTERED NURSE MARY KUNTHARA; TEXAS 

DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL INSTITUTION 

DIVISION; UNIVERSITY OF TEXAS MEDICAL BRANCH; LICENSED 

VOCATIONAL NURSE ADMARIE SCOTT,

Defendants-Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:09-CV-1455

Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.

PER CURIAM:*

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 4, 2016

Lyle W. Cayce

Clerk

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No. 15-20007

2

Joe Frederick filed this civil action in forma pauperis and pro se, alleging 

a violation of his constitutional rights under 42 U.S.C § 1983 and a violation of 

the Americans with Disabilities Act. Frederick alleged that the defendants 

were deliberately indifferent to his medical needs and violated the ADA when 

they delayed his access to medical care after he broke his leg while incarcerated 

in the Jester III Unit of the Texas Department of Criminal Justice. Frederick 

named as defendants twelve individuals employed at the Unit, including the 

warden, correctional officers, and medical personnel.

After screening all of the pleadings pursuant to 28 U.S.C. § 1915A, the 

district court ordered defendants Scott, Smock, Kunthara, and Dostal to 

answer Frederick’s § 1983 complaint. It dismissed all other defendants and 

complaints. On September 23, 2014, the district court granted summary 

judgment on the grounds of qualified immunity in favor of Scott, Smock, 

Kunthara, and Dostal. Frederick moved for a new trial, which the district court 

denied on October 23, 2014. On December 17, 2014, the district court denied 

Frederick’s second post-judgment motion. Frederick filed a notice of appeal in 

this Court on December 30, 2014.

As a threshold issue, we must examine the basis of our jurisdiction.

Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely notice of appeal is 

mandatory and jurisdictional in a civil case. Bowles v. Russell, 551 U.S. 205, 

214 (2007). To the extent that Frederick appeals from the grant of summary 

judgment on September 23, 2014 or the denial of his first post-judgment motion

on October 23, 2014, his notice of appeal was not timely. We therefore lack 

jurisdiction to review those judgments. This portion of the appeal is 

DISMISSED.

Frederick’s appeal was timely as to the December 17, 2014 denial of his 

second post-judgment motion. Only the denial of this motion and not the 

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No. 15-20007

3

original judgment is subject to our review. See Bailey v. Cain, 609 F.3d 763, 

767 (5th Cir. 2010). We review the denial of a Rule 60(b) motion for relief from 

judgment for abuse of discretion. Diaz v. Stephens, 731 F.3d 370, 374 (5th Cir. 

2013). “A district court abuses its discretion if it bases its decision on an 

erroneous view of the law or on a clearly erroneous assessment of the evidence.” 

Hesling v. CSX Transp., Inc., 396 F.3d 632, 638 (quoting Kennedy v. Texas 

Utils., 179 F.3d 258, 265 (5th Cir. 1999)).

Upon examination of the record, we see no indication that the district 

court abused its discretion in denying Frederick’s motion for relief from 

summary judgment. Frederick also has not shown that the district court 

abused its discretion by failing to grant post-judgment relief from the sua 

sponte dismissal of all of his claims against the remaining named defendants 

in the case. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). The judgment of 

the district court is AFFIRMED.

Frederick’s motions for appointment of counsel on appeal and default 

judgment are DENIED.

AFFIRMED IN PART; DISMISSED IN PART; MOTIONS DENIED.

 Case: 15-20007 Document: 00513704519 Page: 3 Date Filed: 10/04/2016