1 Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular cases

on the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40481

Summary Calendar

_____________________

TROY LEE CHAPA,

Plaintiff-Appellant,

versus

JIM WELLS COUNTY; OSCAR LOPEZ, Sheriff,

Individually and in his official capacity,

Defendants-Appellees.

______________________________________________

Appeal from the United States District Court

for the Southern District of Texas

(C-94-CV-360)

______________________________________________

November 2, 1995

Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.

PER CURIAM:1

BACKGROUND

Proceeding with counsel, Troy Chapa filed a 42 U.S.C. § 1983

action against Jim Wells County and Jim Wells County Sheriff Oscar

Lopez for monetary damages resulting from injuries, including a

fractured skull, which he allegedly received when assaulted by coinmates. The district court entered an order scheduling a pretrial

conference. The docket sheet reflects that the parties were
2

notified of the pending conference. The defendants filed an answer

to Chapa's complaint. 

The district court conducted the pretrial conference. The

district court noted Chapa's failure to appear and failure to

contact the defendants since filing the suit and granted the

defendants' motion to dismiss. The district court entered an order

on February 14, 1995, dismissing Chapa's action without prejudice.

On February 17, 1995, Chapa filed a motion to reinstate his

action, explaining that counsel had inadvertently misfiled the

conference order and, consequently, failed to calendar the

conference date. The motion explained that counsel routinely

double calendared all hearings and deadlines, and that counsel had

never missed a hearing or deadline in that court in 11 years of

practice. The motion's certificate of service stated that the

motion had been served by mail the previous day. 

On March 2, 1995, the district court entered its February 28,

1995, order striking the motion to reinstate for failure to comply

with local rules of form. On March 7, 1995, Chapa filed a second

motion to reinstate his action. The certificate of service

reflected that Chapa had served the motion the previous day by

mail. On April 10, 1995, the district court conducted a hearing on

Chapa's motion to reinstate. The district court noted that counsel

had not contacted the defendants since filing the suit six months

before the scheduled pretrial conference and that counsel had

failed to conduct discovery or develop a proposed scheduling order

after filing suit. The district court denied the motion to

reinstate and entered an order to that effect on April 12, 1995. 
3

On April 17, 1995, Chapa filed a motion to reconsider

reinstating his cause of action, attaching 393 pages of documents

he had obtained prior to filing suit. Chapa's certificate of

service reflected that he served the motion by mail on April 14,

1995. On April 19, 1995, the district court entered an order

striking the motion for failure to comply with the local rules of

form. On April 21, 1995, Chapa filed and served a motion for leave

to file his motion to reconsider. On May 19, 1995, the district

court entered an order denying this latest motion "for the reasons

originally given for dismissal of the case". On May 25, 1995,

Chapa then filed his notice of appeal, stating that he was

appealing the district court's order denying his motion to

reinstate his appeal and the latest order denying his motion for

leave to file his motion to reconsider. 

OPINION

Chapa identifies as his issue the district court's alleged

improper denial of his motion to reinstate his case. Yet, he

actually argues whether the district court abused its discretion in

involuntarily dismissing his action. The defendants also address

the involuntary dismissal as the issue for appeal. Because this

appeal turns on whether Chapa is appealing from a Fed. R. Civ. P.

59(e) motion reflecting back to the underlying judgment or from a

Fed. R. Civ. P. 60(b) motion, which would not reach the underlying

judgment, Chapa has not argued the proper issue for appeal. 

With the exception of a motion requesting correction of a

clerical error, all post-judgment motions that call into question

the correctness of the judgment and are served within ten days of
 

2 Amended Fed. R. App. P. 4(a)(4)(f) now states that Rule

60(b) motions suspend the time to notice an appeal if served within

ten days, but this change essentially codifies Harcon Barge's

holding and does not change the result.

4

judgment's entry are treated as Fed. R. Civ. P. 59(e) motions.

Harcon Barge Rentals Co. v. D. & G Boat Rentals, Inc., 784 F.2d

665, 668-69 (5th Cir.) (en banc), cert. denied, 479 U.S. 930

(1986). If the motion is served after that time, it is a Fed. R.

Civ. P. 60(b) motion. Lavespere v. Niagara Mach. & Tool Works, 910

F.2d 167, 173 (5th Cir. 1990), cert. denied, 114 S. Ct. 171

(1993).2

If a party makes a timely Rule 59(e) motion, the 30-day period

for appeal runs anew from the entry disposing of that motion. Fed.

R. App. P. 4(a)(4); Zapata Gulf Marine Corp. v. Puerto Rico

Maritime Shipping, 925 F.2d 812, 816 n.5 (5th Cir), cert. denied,

501 U.S. 1262 (1991). However, a Rule 60(b) motion more than ten

days after the entry of judgment does not suspend the time for

filing an appeal of the underlying judgment. Fed. R. App. P.

4(a)(4); Huff v. International Longshoremen's Ass'n, Local # 24,

799 F.2d 1087, 1089-90 (5th Cir. 1986). Additionally, the denial

of a Rule 60(b) motion does not bring up the underlying judgment

for review. In re Ta Chi Navigation (Panama) Corp. S.A., 728 F.2d

699, 703 (5th Cir. 1984). This Court "`may not treat the appeal

from the ruling on the rule 60(b) motion as an appeal from the

[underlying order] itself'". Aucoin v. K-Mart Apparel Fashion

Corp., 943 F.2d 6, 8 (5th Cir. 1991) (citation omitted).

Any Rule 60(b) motion raising substantially similar grounds as

urged, or as could have been urged, in an earlier motion is deemed
5

successive, and any appeal based on such a motion is not reviewable

by this Court. Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199,

1204 (5th Cir. 1993); Burnside v. Eastern Airlines, Inc., 519 F.2d

1127, 1128 (5th Cir. 1975). The same rule is true for successive

Rule 59(e) motions. Charles L.M. v. Northeast Indep. Sch. Dist.,

884 F.2d 869, 870 (5th Cir. 1989).

The district court's striking of Chapa's motions complicates

the analysis of this case by affecting whether the motions are

considered as either Fed. R. Civ. P. 59(e) or Fed. R. Civ. P. 60(b)

motions. Research has not disclosed any published authority on the

effect of striking in this regard -- whether it "erases" the

motion, whether it is a "disposition," or whether it merely

"suspends" the motion if it is subsequently refiled. If the merits

of the underlying involuntary dismissal were before this Court, it

would be a close question whether the district court erred in

dismissing the action. Because the suit was not filed until one

month before the limitations period ran, the district court's

involuntary dismissal without prejudice effectively became a

dismissal with prejudice as it was impossible to refile the suit.

See Helton v. Clements, 832 F.2d 332, 334 (5th Cir. 1987) (the

applicable limitations period for § 1983 actions brought in Texas

is two years); McGowan v. Faulkner Concrete Pipe Co., 659 F.2d 554,

556 (5th Cir. 1981) (involuntary dismissal without prejudice is

effectively with prejudice because of the running of the statute of

limitations). However, this Court need not reach that issue, as

the following analysis demonstrates that Chapa's appeal ultimately
6

stems from a Rule 60(b) motion which would not have reached the

underlying merits of the judgment. 

Under normal circumstances, Chapa's February 17th motion to

reinstate would have been considered a Rule 59(e) motion as it was

served within ten days of the February 14th dismissal. See Harcon

Barge, 784 F.2d at 668-69. However, if the striking of this motion

effectively erased the motion's existence and fact of its service,

then the second motion to reinstate, served 20 days after judgment,

would be considered a Rule 60(b) motion. See Fed. R. App. P.

4(a)(4). As the Rule 60(b) motions would not have suspended the

time for filing an appeal from the underlying dismissal, and the

denial of the Rule 60(b) motions would not have brought up the

underlying judgment for review, see Huff, 799 F.2d at 1089-90; In

re Ta Chi Navigation, 728 F.2d at 703, Chapa would have argued the

wrong issue on appeal in addressing the merits of the involuntary

dismissal. See Brinkmann v. Abner, 813 F.2d 744, 748 (5th Cir.

1987).

The effect would be the same if the first motion to reinstate

were considered a Rule 59(e) motion and the striking of that motion

were considered a proper disposition of a Rule 59(e) motion.

Chapa's second motion to reinstate, which was served within ten

days of the order striking the first motion, would then normally be

considered a Rule 59(e) motion of the disposition of a previous

Rule 59(e) motion, but considering the ban against successive Rule

59(e) motions, the motion would have to be considered a Rule 60(b)

motion. See Charles L.M., 884 F.2d at 870.
7

Because the first motion to reconsider was served within ten

days of the order disposing of the second motion to reinstate, it

would be construed as a Rule 59(e) motion from a Rule 60(b) motion.

See Fed. R. App. P. 4(a)(4). If the district court's striking of

this motion is considered a proper disposition of a Rule 59(e)

motion, then the second motion to reconsider is construed as a Rule

60(b) motion, to avoid successive Rule 59(e) motions, even though

the motion was served within ten days of the disposition of the

previous motion. See Charles L.M., 884 F.2d at 870. In the end,

Chapa would be appealing from the denial of a Rule 60(b) motion

which would not raise the merits of the dismissal. See In re Ta

Chi Navigation, 728 F.2d at 703. Again, Chapa has addressed the

wrong issue on appeal. See Brinkmann, 813 F.2d at 748. 

However, if the district court's striking of the first motion

to reinstate had no effect as to timely service, but the motion

itself was construed as suspended, the service date would carry

over to the filing and service of the second motion to reinstate,

and the second motion would be considered a timely Rule 59(e)

motion. Chapa would have then had 30 days from the date of the

order denying it to file an appeal which would have raised the

underlying merits of the dismissal. See Harcon Barge, 784 F.2d at

668-69; Fed. R. App. P. 4(a)(4). Instead, Chapa filed and served

a motion to reconsider within ten days of the order denying his

motion to reinstate. Because this motion to reconsider merely

argued another ground of the district court's dismissal and

requested the same relief as the previous motion to reinstate, it

is deemed to have raised substantially similar grounds as his
 

3 Even if the merits of the denial of Chapa's Rule 60(b)

motion were before this Court, Chapa would have had to demonstrate,

not that the reinstatement of his action might have been

permissible, or even warranted, but that the district court's

denial to reinstate must have been so unwarranted as to constitute

an abuse of discretion. Seven Elves, Inc. v. Eskenazi, 635 F.2d

396, 402 (5th Cir. 1981). The district court dismissed the action,

not only because of counsel's failure to appear at a pretrial

conference, but because counsel had failed to take any further

action in case after filing it. Although the involuntary dismissal

may have been harsh because it resulted in a dismissal with

prejudice, there is nothing to indicate that the district court's

action was unwarranted under the circumstances. See id.

8

motion to reinstate and would be considered a successive 59(e)

motion, which is not allowed. See Charles L.M., 884 F.2d at 870.

Therefore, the motion to reconsider would have to be construed as

a Rule 60(b) motion. See id.

Even without considering the effect of the striking of the

motion to reconsider during its first filing, Chapa's May 25th

notice of appeal would have been timely only to the denial of the

Rule 60(b) motion to reconsider, and Chapa is precluded from

questioning the merit of the underlying dismissal of his case.

Chapa would be considered not to have addressed the proper issue on

appeal in addressing the merits of the involuntary dismissal rather

than any error in the district court's denial of his Chapa's Rule

60(b) motion. Brinkmann, 813 F.2d at 748. This Court will not

address Chapa's issue on appeal, and the appeal should be dismissed

as frivolous.3

DISMISSED