* 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that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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. 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 F ED . R. A PP . 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 F ED . R. A PP . 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 ofappeal 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.