Opinion · Court of Appeals for the Fifth Circuit

John T. Martin v. Louis Wainwright, Director, Division of Corrections, Etc.

John T. Martin v. Louis Wainwright, Dir., Div. of Corr., Etc., 469 F.2d 1072 (5th Cir. 1973)

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1973-01-17
Topic
general

How later courts describe this case

  • "[A]n untimely motion will not toll the time for taking an appeal." (citations omitted)

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UpLaw has not yet analyzed John T. Martin v. Louis Wainwright, Director, Division of Corrections, Etc.. The absence of a flag is not a finding that it is good law.

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Cited by
24 opinions
MARTIN v. WAINWRIGHT,469 F.2d 1072(5th Cir. 1972)
JOHN T. MARTIN, PETITIONER-APPELLANT, v. LOUIS WAINWRIGHT, DIRECTOR,
DIVISION OF CORRECTIONS, ETC., ET AL., RESPONDENTS-APPELLEES.
No. 72-1946.
Summary Calendar.fn*
United States Court of Appeals, Fifth Circuit.
November 17, 1972.
Rehearing Denied January 17, 1973.
Page 1073
John T. Martin, pro se.

Daniel S. Dearing, Chief Trial Counsel, Dept. of Legal Affairs, Tallahassee, Fla., Robert L. Shevin, Atty. Gen., Tampa, Fla., for respondents-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before WISDOM, GODBOLD and RONEY, Circuit Judges.
PER CURIAM:
[1] This is an appeal from the district court's dismissal of a Civil Rights action1filed by an inmate of the Florida state prison at Raiford, Florida. In his complaint the appellant contended that the prison officials were denying him adequate medical attention, and he sought an order directing them to place him in a hospital other than the prison's clinic for treatment. After a response was filed which included exhibits of the appellant's prison hospital records, the district court denied relief, finding that the appellant had failed to show that there had been any abuse of the prison officials' wide latitude of discretion in treating him. It is from this ruling that the appellant seeks review.

[2] We have concluded that this Court is without jurisdiction to adjudicate the appeal because our examination of the record shows that the appellant failed to file a timely notice of appeal as required by Rule4(a), F.R.A.P.

[3] After the district court dismissed the complaint on October 19, 1971, the appellant manifested no dissatisfaction with the ruling until December 30, 1971, or some 72 days after entry of judgment, at which time he filed a petition for rehearing. The petition was subsequently denied.

[4] The provisions of Rule59(b), F.R.Civ.P., make it clear that such a motion for new trial or for reconsideration must be filed within ten days of the court's judgment. The time requirement of Rule 59(b) is jurisdictional; for the court lacks authority to rule upon a motion filed beyond the statutory period. Albers v. Gant, 5th Cir. 1970,435 F.2d 146. Moreover, an untimely motion will not toll the time for taking an appeal. Hulson v. Atchison, Topeka Santa Fe Ry. Co., 7th Cir. 1961,289 F.2d 726, cert. denied 1961,368 U.S. 835,82 S.Ct. 61,7 L.Ed.2d 36. Cf. Maryland Tuna Corp. v. MS Benares, 2nd Cir. 1970,429 F.2d 307.

[5] Since the record in this case affirmatively discloses that no document which might reasonably be construed as a notice of appeal was filed until twelve days beyond the maximum extended time limitation under Rule4(a), F.R.A.P., the appeal must be dismissed for want of jurisdiction.SeeTribbitt v. Wainwright, 5th Cir. 1972,462 F.2d 600, and cases cited therein.

[6] Appeal dismissed.Page 1074
  1. Rule 18, 5 Cir., Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970,431 F.2d 409, Part I. ↩
  2. 42 U.S.C. § 1983. ↩