     Case: 10-50327         Document: 00511220946               Page: 1       Date Filed: 08/31/2010




            IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT     United States Court of Appeals
                                                       Fifth Circuit
                        _____________________       FILED
                                                                                       August 31, 2010
                                          Nos. 09-51120 &
                                              10-50327                                   Lyle W. Cayce
                                       _____________________                                  Clerk

DARRELL TRIPP,

                Plaintiff - Appellant

v.

GATEWAY FOUNDATION; WEBER, Director of Gateway Foundation,

                Defendants - Appellees

                                   __________________________

                  Appeal from the United States District Court for the
                               Western District of Texas
                                USDC No. 1:09-CV-522
                             __________________________

Before CLEMENT, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        This court must examine the basis of its jurisdiction, on its own motion if
necessary. Hill v. City of Seven Points, 230 F.3d 167, 169 (5th Cir. 2000).
Pursuant to 28 U.S.C. § 2107(a) and Federal Rule of Appellate Procedure
4(a)(1)(A), the notice of appeal in a civil case must be filed within thirty days of
entry of judgment. In this civil rights action filed by a state prisoner, the district
court entered final judgment dismissing the complaint on November 4, 2009.
Therefore, the final day for filing a timely notice of appeal was December 4,


        *
          Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not be published and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 5TH CIR . R. 47.5.4.
   Case: 10-50327    Document: 00511220946      Page: 2    Date Filed: 08/31/2010



                                   09-51120 &
                                    10-50327

2009. The plaintiff filed a timely notice of appeal, but this court dismissed the
appeal on March 22, 2010, for failure to pay the fees or move to appeal in forma
pauperis (IFP). Tripp v. Gateway Found., No. 09-51120 (5th Cir. Mar. 22, 2010).
On April 1, 2010, the plaintiff filed a new notice of appeal, which was assigned
number 10-50327. Treating the document as a notice of appeal of the district
court’s judgment of December 7, 2009, it is plainly out of time. The timeliness
of a notice of appeal in a civil case is jurisdictional. Bowles v. Russell, 551 U.S.
205, 212-13 (2007). Accordingly, the appeal is dismissed.
      However, based on the timing of the notice, it is possible that the plaintiff
was attempting to have this court reconsider its March 22 dismissal. Out of an
abundance of caution and in the interest of justice, we treat the document as a
motion to reconsider the dismissal of appeal number 09-51120. Pursuant to our
Internal Operating Procedure following 5th Circuit Rule 27, an appeal dismissed
by the clerk ordinarily will not be reinstated unless the default has been
remedied and the motion to reinstate is filed within forty-five days after
dismissal. Here, the plaintiff did not remedy the default (by preparing his IFP
motion) until forty-nine days after his appeal was dismissed. Moreover, his
motion contains no explanation for his prior failure to pay the filing fee timely
or make timely application for IFP status. Accordingly, the motion to reconsider
the denial of number 09-51120 is denied.
      IT IS SO ORDERED.
