                                  United States Court of Appeals,

                                            Fifth Circuit.

                                            No. 91–4015.

                                         Summary Calendar.

                          Esmael Balboa TIJERINA, Plaintiff–Appellant,

                                                  v.

               Larry V. PLENTL, Assistant Warden, et al., Defendants–Appellees.

                                           April 16, 1992.

Appeal from the United States District Court for the Eastern District of Texas.

Before POLITZ, Chief Judge, KING and EMILIO M. GARZA, Circuit Judges.

       EMILIO M. GARZA, Circuit Judge:

       Alleging prison guards attacked him in retaliation for his exercise of prison grievance

procedures, Esmael Tijerina, an inmate in the Texas Department of Criminal Justice, Institutional

Division, proceeding pro se and in forma pauperis (IFP), filed a complaint pursuant to 42 U.S.C. §

1983. Following trial, the jury returned a verdict for defendants and the district court entered

judgment against Tijerina. Tijerina then moved for a new trial, which the district court denied as

untimely. Subsequently, Tijerina filed a motion with this court to proceed IFP. Construing Tijerina's

motion to proceed IFP as a timely notice of appeal, we find that we have jurisdiction to consider the

merits of Tijerina's action. However, since Tijerina raises a section 1983 cause of action alleging an

Eighth Amendment violation, we vacate the district court's opinion and remand with instructions to

reconsider this case in light of the Supreme Court's recent decision in Hudson v. McMillian, ––– U.S.

––––, 112 S.Ct. 995, ––– L.Ed.2d –––– (1992).



                                                   I

        Following a jury trial which resulted in judgment for the defendants, Tijerina filed two notices

of appeal—one on December 10, 1990 and the other on December 14, 1990. On December 13,

1990, Tijerina served a motion for a new trial which was filed with the district court on December
18, 1990. Tijerina's motion for new trial extinguished his notices of appeal.1 Tijerina then filed a

Motion to Proceed IFP with the district court on January 10, 1991.



           On February 26, 1991, the district court denied Tijerina's timely Motion for New Trial and

Motion to Proceed IFP.2 The district court further held that even if Tijerina's motion were construed

as a Rule 60(b) motion—a motion calling into question the correctness of the judgment—which can

be filed up to a year following the entry of a judgment,3 the motion lacked merit. On March 21, 1991,

   1
     Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that if any party files a
timely motion for new trial under Rule 59, a notice of appeal filed before the disposition of that
motion shall have no effect. Therefore, Tijerina's motion for new trial extinguished his notices of
appeal. See Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 988, 103 L.Ed.2d 146
(1989) (Rule 4(a)(4) provides if any party files a Rule 59 motion, a notice of appeal filed before
the disposition of that motion "shall have no effect"); see also Zapata Gulf Marine Corp. v.
Puerto Rico Maritime Shipping Auth., et al., 925 F.2d 812, 814 (5th Cir.1991) (Notice of Appeal
filed during pendency of motion was of no effect).
   2
     The district court incorrectly denied Tijerina's motion for a new trial as untimely. In
determining timeliness, the proper procedure is to count days from the entry or docketing date of
the judgment, not from the date the judgment is filed. See Ross v. Global Marine, 859 F.2d 336,
337 (5th Cir.1988) (timeliness of an appeal from final judgment must be measured from the date
of entry). Accordingly, Tijerina had ten days from December 6, 1990—until December 16—to
move for a new trial (page 8 of the docket sheet states that judgment was filed on December 4,
1990 and entered on December 6, 1990). See Fed.R.Civ.P. 59(b) ("A motion for new trial shall
be served not later than 10 days after entry of judgment) (emphasis added). Tijerina served his
motion for new trial on December 13, 1990 which was filed on December 18, 1990. The correct
date for measuring the timeliness of the motion is the date it was served (December 13, 1990), not
the date it was filed. See Allen v. Ault, 564 F.2d 1198, 1199 (5th Cir.1977) (Rule 59(b) applies to
time of service and not time of filing); see also Harcon Barge Co., Inc. v. D & E Boat Rentals,
746 F.2d 278, 289 (5th Cir.1984) (the date served is the relevant date for its timeliness, not the
date it was filed).

                  In denying Tijerina's motion for new trial, the district court erred by using the dates
          December 4 (the date the court's judgment was filed) and December 18 (the date Tijerina's
          motion was filed). Tijerina's motion was served on December 13—seven days from the
          date the district court entered its judgment on December 6 and well within the 10 days
          prescribed by Rule 59(b) of the Federal Rules of Civil Procedure.
   3
       Rule 60(b) of the Federal Rules of Civil Procedure provides:

                  On motion and upon such terms as are just, the court may relieve a party or a
                  party's legal representative from a final judgment, order, or proceeding for the
                  following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2)
                  newly discovered evidence which by due diligence could not have been discovered
                  in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore
                  denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an
                  adverse party; (4) the judgment is void; (5) the judgment has been satisfied,
Tijerina filed a motion with this court to proceed on appeal IFP.



                                                      II

           When our jurisdiction is at all questionable and the parties have failed to raise the issue, this

Court must examine the basis of its jurisdiction on its own motion. See Mosley v. Cozby, 813 F.2d

659, 660 (5th Cir.1987). We embark upon such an examination in this case.



           Rule 4(a)(4) of the Federal Rules of Appellate Procedure provides that:



          [i]f a timely motion under the Federal Rules of Civil Procedure is filed in the district court by
          any party ... under Rule 59 for a new trial, the time for appeal for parties shall run from the
          entry of the order denying a new trial or granting or denying any other such motion. A
          notice of appeal filed before the disposition of any of the above motions shall have no effect.
          A new notice of appeal must be filed within the prescribed time measured from the entry of
          the order disposing of the motion as provided above.

Fed.R.App.P. 4(a)(4) (emphasis added). Pursuant to Rule 4(a)(4), the time for Tijerina to file a

notice of appeal on the district court's denial of his motion for new trial began to run on February 26,

1991. Tijerina had 30 days from that date to file a notice of appeal.4 See Barber v. Security Ben. Life

Ins. Co., 936 F.2d 210, 211 (5th Cir.1991) ("An appellant has 30 days from entry of final judgment

in which to file a notice of appeal. The 30–day period may be extended if a timely motion is filed in

the district court under Fed.R.Civ.P. 59(e) to alter or amend the judgment."). Although Tijerina did



                  released, or discharged, or a prior judgment upon which it is based has been
                  reversed or otherwise vacated, or it is no longer equitable that the judgment should
                  have prospective application; or (6) any other reason justifying relief from the
                  operation of the judgment.
   4
       Fed.R.App.P. 4 provides in pertinent part:

          (a) Appeals in Civil Cases.

          (1) In a civil case in which an appeal is permitted by law as of right form a district court to
          a court of appeals the notice of appeal required by Rule 3 shall be filed ... within 30 days
          after the entry of judgment appealed from....

          (4) If a timely motion is filed ... (iii) under Rule 59 ... the time for appeal shall run from the
          entry of the order ... granting or denying the motion....
not file a proper notice of appeal, he did file a motion to proceed IFP on March 21, 1991.



          Tijerina's timely motion was accompanied by an Affidavit in Support of Motion to Proceed

on Appeal In Forma Pauperis, which raises several grounds to challenge the district court's judgment

against him and its denial of his motion to proceed on appeal IFP. This Court has repeatedly held that

such a motion "is the substantial equivalent of a notice of appeal and is effective to invoke appellate

jurisdiction." United States v. Cooper, 876 F.2d 1192, 1195 (5th Cir.1989).5



           In Fischer, this court noted in order to qualify as the equivalent of notice of appeal, a

document should accomplish the dual objectives of (1) notifying the Court and (2) notifying opposing

counsel of the taking of appeal. See Fischer v. United States Dep't of Justice, 759 F.2d at 464; see

also Van Wyk El Paso Investment, Inc., 719 F.2d 806, 807 (5th Cir.1983). Tijerina's motion to

proceed IFP accomplishes these goals. In fact, Tijernia's IFP motion satisfies the requirements of

Rule 3(c) of the Federal Rules of Appellate Procedure.6 Accordingly, we find that we have

jurisdiction to consider the merits of Tijerina's appeal.



                                                  III

           Tijerina alleges that prison guards attacked him in retaliation for his exercise of prison

grievance procedures—a section 1983 excessive force action alleging an Eighth Amendment


   5
     See Fischer v. United States Dep't of Justice, 759 F.2d 461, 464 (5th Cir.1985) (under
well-settled principles, a timely motion to proceed in forma pauperis on appeal is substantial
equivalent of a notice of appeal); Robbins v. Maggio, 750 F.2d 405, 408–409 (5th Cir.1985) (it
is well-established that request to proceed IFP satisfies filing requirement for notice of appeal),
citing Causey v. Civiletti, 621 F.2d 691 (5th Cir.1980); Cobb v. Lewis, 488 F.2d 41 (5th
Cir.1974); Tillman v. United States, 268 F.2d 422, 424 (5th Cir.1959) (we have held a petition
for leave to appeal IFP to be substantial compliance with notice of appeal requirements).
   6
       Rule 3(c) of the Federal Rule of Appellate Procedure provides:

                 (c) Content of the Notice of Appeal. The notice of appeal shall specify the party
                 or parties taking the appeal; shall designate the judgment, order or part thereof
                 appealed form; and shall name the court to which the appeal is taken.... An appeal
                 shall not be dismissed for informality of form or title of notice of appeal.
violation. While Tijerina's appeal was pending before this court, the United States Supreme Court

decided Hudson v. McMillian, ––– U.S. ––––, 112 S.Ct. 995, ––– L.Ed.2d –––– (1992), and changed

the standard we apply for excessive force claims. Specifically, the Court held that the use of

excessive physical force against a prisoner may constitute cruel and unusual punishment even though

the inmate does not suffer serious injury, thereby overruling the significant injury standard we

previously relied upon.7 Accordingly, we vacate the district court's opinion and remand with

instructions to reconsider this case in light of Hudson.



                                                   IV

          For the foregoing reasons, we VACATE and REMAND for reconsideration.




   7
       See Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.1990);

                 In order for a plaintiff to prevail, on an Eighth Amendment "excessive force"
                 claim, these four elements must be proven:

                         1. a significant injury, which

                         2. resulted directly and only from the use of force that was clearly
                         excessive to the need, the excessiveness of which was

                         3. objectively unreasonable, and

                         4. the action constituted an unnecessary and wanton infliction of pain.
