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that this opinion should not be published and is not precedent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

April 21, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-60770

Conference Calendar

 

JIMMY CULBERT,

Plaintiff-Appellant,

versus

MISSISSIPPI DEPARTMENT OF CORRECTIONS HOSPITAL; 

JOHN BERRY, In his individual and official 

capacities as Medical Director of Mississippi 

Department of Corrections Hospital; BILL STIEGER, 

In his individual and official capacities as 

Administrator of Mississippi Department of 

Corrections Hospital; LISA TUCKER, In her 

individual capacity as medical nurse of 

Mississippi Department of Corrections Hospital; 

SHOND PHELON, Dr, In her individual capacity as 

doctor of Mississippi Department of Corrections Hospital,

Defendants-Appellees.

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

Appeal from the United States District Court

for the Northern District of Mississippi

USDC No. 4:03-CV-220-DA

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

Before JOLLY, JONES, and SMITH, Circuit Judges.

PER CURIAM:*

 Jimmy Culbert, Mississippi prisoner # R2343, has filed a

notice of appeal following the dismissal of his 42 U.S.C. § 1983

complaint for failure to exhaust administrative remedies. 
No. 03-60770

-2-

We have a duty, sua sponte, to examine our appellate

jurisdiction. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir.

1987). Culbert’s first post-judgment motion, the motion for

reconsideration, was filed within 10 business days of the entry

of judgment. It thus suspended the time for filing a notice

of appeal until the motion was denied. See FED. R. APP. P.

4(a)(4)(A)(iv); Harcon Barge Co., Inc. v. D & G Boat Rentals,

Inc., 784 F.2d 665, 667 (5th Cir. 1986). Culbert did not file a

notice of appeal from the judgment, or from the denial of the

first post-judgment motion, within the next 30 days, however. 

Instead, he filed his second post-judgment motion, the motion for

“rehearing.” This second motion, filed more than 10 days after

entry of final judgment, did not toll the time in which Culbert

had to file a notice of appeal from the final judgment or the

denial of the first post-judgment motion. See FED. R. APP.

P. 4(a)(4)(A); Harcon Barge, 784 F.2d at 667; see also Latham v.

Wells Fargo Bank, N.A., 987 F.2d 1199, 1203 (5th Cir. 1993)

(litigant may not use second Rule 60(b) motion to circumvent time

limits for the appeal). However, because Culbert’s notice of

appeal was filed within 30 days of the denial of the second postjudgment motion, it was timely with respect to the denial of that

motion. Our jurisdiction is thus limited to the denial of the

second post-judgment motion. Review is for abuse of discretion.

See Latham, 987 F.2d at 1203. 
No. 03-60770

-3-

 Culbert argues that the district court erred in denying his

second post-judgment motion without hearing the merits of his

civil rights claims. Whether Culbert’s complaint set forth the

elements of a civil rights claim is immaterial to the district

court’s denial of his post-judgment motion given that the

district court dismissed the complaint for failure to exhaust

administrative remedies. Culbert thus has failed to show that

the district court abused its discretion by denying the motion. 

Culbert’s motion for the appointment of counsel is DENIED. 

AFFIRMED; MOTION DENIED.