     Case: 13-10588      Document: 00512640710         Page: 1    Date Filed: 05/23/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 13-10588                                FILED
                                  Summary Calendar                          May 23, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
CLARENCE D. BROWN,

                                                 Plaintiff-Appellant

v.

ALLISON TAYLOR, In Her Official and Individual Capacity as Executive
Director, Office of Violent Sex Offender Management; DIANA LEMON, In Her
Official and Individual Capacity as Program Specialist/Case Manager Office of
Violent Sex Offender Management; BRIAN COSTELLO, In His Official and
Individual Capacity as President, Avalon Correctional Services, Incorporated;
GREG BASHAM, In His Official and Individual Capacity as Facility
Administrator, Avalon Correctional Services, Incorporated; CARLOS
MORALES, In His Official and Individual Capacity as Facility Administrator,
Avalon Correctional Services, Incorporated; TARRANT COUNTY;
MONTGOMERY COUNTY,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:12-CV-698


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-10588       Document: 00512640710   Page: 2   Date Filed: 05/23/2014


                                  No. 13-10588



      Clarence D. Brown appeals the dismissal of his 42 U.S.C. § 1983 action
and the denial of his Federal Rule of Civil Procedure 59(e) motion challenging
the dismissal. The vast majority of the issues raised by Brown concern the
dismissal of his § 1983 action rather than the denial of his Rule 59(e) motion.
       The timing of Brown’s notice of appeal raises a threshold question
regarding this court’s jurisdiction, which we must examine on our own motion,
if necessary. See Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). In a civil
case, the timely filing of a notice of appeal “is a jurisdictional requirement.”
Bowles v. Russell, 551 U.S. 205, 214 (2007).
      Brown’s notice of appeal was timely in relation to the denial of his Rule
59(e) motion, but it was not directly timely in relation to the judgment of
dismissal. Thus, the notice of appeal was timely as to the underlying dismissal
of the complaint only if Brown’s Rule 59(e) motion was timely filed. See FED.
R. APP. P. 4(a)(4)(A).
      The judgment of dismissal was entered on March 14, 2013. Brown’s Rule
59(e) motion, which was dated April 9, 2013, was received and filed in the
district court on April 12, 2013, 29 days after the dismissal of the complaint
and one day after the expiration of the time to file a Rule 59(e) motion. Thus,
if the prisoner mailbox rule applies to Brown, the Rule 59(e) motion was
presumptively timely, but if the prisoner mailbox rule does not apply, the Rule
59(e) motion was untimely. See United States v. Young, 966 F.2d 164, 165 (5th
Cir. 1992).
      The prison mailbox rule applies to prisoners who are proceeding pro se.
See Stoot v. Cain, 570 F.3d 669, 671 (5th Cir. 2009). When a litigant is not
incarcerated, however, the prison mailbox rule does not apply. United States
v. Clark, 193 F.3d 845, 846 n.3 (5th Cir. 1999). A pro se litigant is given the
    Case: 13-10588      Document: 00512640710       Page: 3    Date Filed: 05/23/2014


                                    No. 13-10588

benefit of the prisoner mailbox rule if by tendering a pleading for mailing he
“has completed everything within his control to deliver the actual petition to
the court.” Spotville v. Cain, 149 F.3d 374, 376 (5th Cir. 1998); see also Houston
v. Lack, 487 U.S. 266, 270-72 (1988).
         At the time Brown filed his Rule 59(e) motion, he was not incarcerated
pursuant to a criminal conviction, but he was civilly committed under the
Texas sexually violent predator civil commitment law, TEX. HEALTH & SAFETY
CODE ANN. §§ 841.001–.150. According to the Texas Supreme Court, the Texas
sexually violent predator civil commitment law “permits the [sexually violent
predator] to live at large in the community.” In re Commitment of Fisher, 164
S.W.3d 637, 652 (Tex. 2005). However, in his Rule 59(e) motion, Brown alleged
that he was, at that time, “forced to live in a ‘secure correctional’ facility . . . 24
hours per day.” Brown made no allegations regarding his access to mail and
other methods of filing pleadings in the district court.          Furthermore, the
district court received no other evidence and made no factual findings on this
issue.
         On the present record, we cannot determine whether the prison mailbox
rule applies, making Brown’s notice of appeal timely and giving us jurisdiction
over this appeal. Accordingly, we hold the appeal and Brown’s motion for
appointment of counsel on appeal in abeyance and remand for the limited
purpose of making factual findings regarding the extent of Brown’s
confinement and Brown’s ability to file pleadings at the time he filed his
Rule 59(e) motion.
         APPEAL AND MOTION FOR APPOINTMENT OF COUNSEL ON
APPEAL HELD IN ABEYANCE; LIMITED REMAND.




                                          3
