United States Court of Appeals

for the Fifth Circuit

No. 20-10221

Summary Calendar

Salvador Jimenez, 

Plaintiff—Appellant,

versus

Bobby Lumpkin, Director, Texas Department of Criminal Justice, 

Correctional Institutions Division, 

Defendant—Appellee.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:17-CV-139

Before King, Smith, and Higginson, Circuit Judges.

Per Curiam:*

Salvador Jimenez, Texas prisoner # 870962, filed a 42 U.S.C. § 1983 

complaint that the district court dismissed as frivolous pursuant to 28 U.S.C. 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 9, 2021

Lyle W. Cayce

Clerk

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No. 20-10221

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§ 1915A, 28 U.S.C. § 1915(e)(2), and 42 U.S.C. § 1997e(a). Jimenez then 

filed a document he entitled, “Motion for Objection to the Judge’s Report.”

“This Court must examine the basis of its jurisdiction, on its own 

motion, if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987) (per 

curiam). A timely “notice of appeal in a civil case is a jurisdictional 

requirement.” Bowles v. Russell, 551 U.S. 205, 214 (2007). “A document 

filed in the period prescribed by Fed. R. App. P. 4(a)(1) for taking an appeal 

should be construed as a notice of appeal if the document clearly evinces the 

party’s intent to appeal.” Mosley, 813 F.2d at 660 (internal quotations marks 

and citations omitted); see also Smith v. Barry, 502 U.S. 244, 248 (1992) (“a 

notice of appeal must specifically indicate the litigant’s intent to seek 

appellate review”). 

A motion for reconsideration that seeks an appeal alternatively to 

postjudgment relief does not clearly indicate the intent to appeal. Mosley, 813 

F.2d at 660. Because Jimenez sought reconsideration after discovery as his 

primary request and he did not indicate that he was seeking an appeal in the 

Fifth Circuit, the pleading was insufficient to constitute a notice of appeal. 

See id.; Fed. R. App. P. 3(c)(1)(C). Rather, because the pleading seeks 

reconsideration and was filed within 28 days of the judgment, it is more 

properly construed as a motion under Federal Rule of Civil Procedure 59(e). 

See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994).

Although Jimenez later filed a motion for leave to proceed in forma 

pauperis that can be construed as a notice of appeal, see Fischer v. U.S. Dep’t 

of Just., 759 F.2d 461, 464 & n.2 (5th Cir. 1985) (per curiam), that pleading

cannot become effective as a notice of appeal until the district court rules on 

the outstanding Rule 59(e) motion. See Fed. R. App. P. 4(a)(4)(B)(i); 

Lawson v. Stephens, 900 F.3d 715, 717 & n.3 (5th Cir. 2018). We therefore 

REMAND this case to the district court for the limited purpose of ruling on 

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No. 20-10221

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the pending Rule 59(e) motion “as expeditiously as possible, consistent with 

a just and fair disposition.” See Lawson, 900 F.3d at 721 (internal quotation 

marks and citation omitted). We hold the appeal in abeyance until the notice 

of appeal becomes effective, and we retain jurisdiction over the appeal except 

for the purposes of the limited remand. 

LIMITED REMAND; APPEAL HELD IN ABEYANCE.

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