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that this opinion should not be published and is not precedent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

_________________

No. 97-40017

(Summary Calendar)

_________________

TIMOTHY A AGUILAR,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION, Company Departments;

UNIDENTIFIED WOODS, Sergeant, Coffield Unit;

UNIDENTIFIED WILBANKS, Sergeant, Coffield

Unit,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

(6:95-CV-677)

July 25, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Timothy Aguilar, proceeding pro se, appeals the district

court’s denial of his Fed. R. Civ. P. 60(b) motion for relief from
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final judgment. Aguilar and several other prisoners filed an

action in district court under 42 U.S.C. § 1983, asserting various

civil rights violations. The district court dismissed Aguilar’s

claims with prejudice in an interlocutory order. Four months

later, on June 14, 1996, the district court dismissed the claims of

the last remaining plaintiff and entered a final judgment in the

action. None of the plaintiffs filed a notice of appeal from the

judgment. 

On November 12, 1996, Aguilar filed his Rule 60(b) motion,

asserting that he was denied the ability to appeal the dismissal of

his claims due to the district court’s failure to notify him of the

entry of final judgment. Aguilar claimed that he learned of the

judgment only after visiting with one of the other plaintiffs. In

support of his motion, Aguilar attached a sworn affidavit by the

prison mailroom supervisor stating that Aguilar had not received

any legal mail in the month following the date of entry of the

judgment. The district court denied the motion on the grounds that

a Rule 60(b) motion may not be used to extend the time for filing

a notice of appeal and that Aguilar otherwise failed to meet the

requirements of Fed. R. App. P. 4(a)(5) for enlargement of time for

appeal.

Aguilar argues on appeal that the district court abused its

discretion because it failed to consider his Rule 60(b) motion as

a Fed. R. App. P. 4(a)(6) motion to reopen the time for appeal.

Rule 4(a)(6) states: 
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[t]he district court, if it finds (a) that a

party entitled to notice of the entry of a

judgment or order did not receive such notice

from the clerk or any party within 21 days of

its entry and (b) that no party would be

prejudiced, may, upon motion filed within 180

days of entry of the judgment or order or

within 7 days of receipt of such notice,

whichever is earlier, reopen the time for

appeal for a period of 14 days from the date

of entry of the order reopening the time for

appeal.

We cannot determine at this stage whether the district court abused

its discretion because it is unclear from the record whether

Aguilar filed his motion within seven days of learning of the

judgment from his co-plaintiff, or whether he otherwise satisfies

the requirements of Rule 4(a)(6).

Accordingly, we REMAND the case to enable the district court

to determine whether Aguilar qualifies for relief under Rule

4(a)(6), and, if he does qualify, whether, in the court’s

discretion, such relief should be granted.