1 We express no opinion on the merits of Appellees' Petition for

Rehearing or their Suggestion for Rehearing En Banc.

1 UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

___________

No. 91-4015

___________

ESMAEL BALBOA TIJERINA,

Plaintiff-Appellant,

v.

LARRY V. PLENTL, Assistant Warden, ET AL.,

Defendants-Appellees.

________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

________________________________________________________________ (February 11, 1993)

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion 04/16/92, 5 Cir., 199_, (_____F.2d_____)

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The Petition for Rehearing is DENIED and no member of this

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED. 1 We, however, withdraw our prior

opinion and substitute the following:2

Alleging prison guards attack ed him in retaliation for his

exercise of prison grievance procedures, Esmael Tijerina, an inmate

in the Texas Department of Criminal Justice, Institutional

Division, proceeding pro se and in forma pauperis (IFP), filed a

complaint pursuant to 42 U.S.C § 1983 (1988). Following trial, the

ju ry returned a verdict for defendants and the district court

entered judgment against Tijerina. Tijerina then moved for a new

trial, which the district court denied as untimely. Finding that

Tijerina's motion for new trial was timely, we dismiss his appeal

as premature.

I

Following a jury trial which resulted in judgment for the

defendants )) entered on December 6, 1990 )) Tijerina filed two notices

of appeal )) one on December 10, 1990 and the other on December 14,

1990. On December 13, 1990, Tijerina served a motion for a new

trial which was filed with the district court on December 18, 1990.

Tijerina then filed a Motion to Proceed IFP with the district court

on January 10, 1991.

On February 26, 1991, the distr ict court denied Tijerina's

timely Motion for New Trial and Motion to Proceed IFP. The

district court further held that even if Tijerina's motion was

con strued as a Rule 60(b) motion ) ) a motion calling into question

the correctness of the judgment )) which can be filed up to a year2 Rule 60(b) of the Federal Rules of Civil Procedure provides:

On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

3 following the entry of a judgment, 2 the motion lacked mer it. On

March 21, 1991, Tijerina filed a motion with this court to proceed

on appeal IFP.

II

When our jurisdiction is at all questionable and the parties

have failed to raise the issue, this Court must examine the basis

of its jurisdicti on on its own motion. See Mosley v. Cozby

, 813

F.2d 659, 660 (5th Cir. 1987). We embark upon such an examination

in this case.

A

In determ ining timeliness of a motion for new trial, the

proper procedure is to count days from the entry or docketing date

of the judgment, see Ross v. Global Marine

, 859 F.2d 336, 337 (5th

Cir. 1988) (timeliness of an appeal from final judgment must be

measured from the date of entry and not date of filing), to the

date the motion was served. S ee Allen v. Ault

, 564 F.2d 1198, 1199

(5th Cir. 1977) (Rule 59(b) applies to time of service and not time

of filing). Accordingly, Tijerina had ten days from December 6,3 In fact, Tijerina had until December 20 to serve his motion for

new trial. See Fed. R. Civ. P. 6(a) ("When the period of time prescribed or allowed is less than 11 days intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.").

4 Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides

that:

[i]f a timely motion under the Federal Rules of Civil Procedure is filed in the district court by any party . . . under Rule 59 for a new trial, the time for appeal for parties shall run from the entry of the order denying a new trial or granting or denying any

other such motion. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A

4 1990 3 to move for a new trial (page 8 of the docket sheet states

that judgment was entered on December 6, 1990, and that Tijerina

served his motion for new trial on December 13. See Fed. R. Civ.

P. 59(b) ("A motion for a new trial shall be served not later than

10 days after the entry of the judgment." (emphasis added)).

In denying T ijerina's motion for new trial as untimely, the

district court er red by using the dates December 4 (the date the

court's judgment was filed) and December 18 (the date Tijerina's

motion was filed). Tijerina's motion was served on December

13 )) seven days from the date the district court entered its

judgment on December 6 and well w ithin the 10 days prescribed by

Rule 59(b) of the Federal Rules of Civil Procedure. Accordingly we

find that the district court incorrectly denied Tijerina's motion

for a new trial as untimely.

B

Rule 4(a)(4) of the Federal Rules of Appellate Procedure

p rovides that if any party files a timely motion for new trial

under Rule 59, a notice of appeal filed before the disposition of

t hat motion shall have no effect. 4 Therefore, Tijerina's motionnew notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

Fed. R. App. P. 4(a)(4) (emphasis added).

5 For the same reasons, Tijerina's motion to proceed IFP of

March 21, 1991 )) which "is the substantial equivalent of a notice of appeal," Fischer v. United States Dept. of Justice, 759 F.2d 461, 464 (5th Cir.
1985) )) is also extinguished.

5 for new trial extinguished his notices of appeal

. 5 S ee Osterneck

v. Ernst & Whinney, 489 U.S. 169, 109 S. Ct. 987, 988, 103 L. Ed.

2d 146 (1989) (Rule 4(a)(4) provides if any party files a Rule 59

motion, a notice of appeal filed before the disposition of that

motion "shall have no effect"); s ee also Zapata Gulf Marine Corp.

v. Puerto Rico Maritime Shipping Auth., et al., 925 F.2d 812, 814

(5th Cir.) (notice of appeal filed during pendency of motion was of

no effect), cert. denied,

___ U.S.

___, 111 S. Ct. 2417, 115 L. Ed.

2d 1080 (1991). Because the district court has not properly

disposed of Tijerina's motion for new trial, we lack the

jurisdiction to consider Tijerina's appeal. S ee Fed. R. App. P.

4(a) ("A notice of appeal filed before the disposition of any of

the above motions shall have no effect."); Harcon Barge Co., Inc.

v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (a posttrial motion seeking to amend judgment, which is served within ten

days after entry of judgment, must be considered a Rule 59(e)

motion for the purposes of Rule 4 of the Federal Rule of Appellate

Procedure), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed.

2d 351 (1986).6 Tijerina alleges that prison guards attacked him in retaliation

for his exercise of prison grievance procedures )) a § 1983 excessive force action alleging an Eighth Amendment violation. While Tijerina's appeal was pending before this court, the United States Supreme Court decided Hudson v.
McMillian , ___ U.S. ___, 112 S. Ct. 995, 117 L.Ed. 2d 156 (1992), and changed the standard we apply for excessive force claims. Specifically, the Court held that the use of excessive physical force against a prisoner may constitute cruel and unusual punishment even though the inmate does not suffer serious injury, see id. at 997, thereby overruling the significant injury standard we previously relied upon. See Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir. 1990). The district court should reconsider its judgment and Tijerina's Motion for New Trial in light of Hudson.

6 III

Accordingly, we DISMISS Tijerina's appeal as premature. 6