                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   June 9, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 04-10633
                          Summary Calendar



BILLY N. STEVENSON,

                                     Plaintiff-Counter Defendant-
                                     Appellant,

versus

DON ANDERSON, Sheriff; NFN SNEED, Lieutenant;
NFN LYNN, Medical Officer,

                                     Defendants-Counter Claimants-
                                     Appellees.

                       --------------------
          Appeal from the United States District Court
               for the Northern District of Texas
                     USDC No. 3:00-CV-2157-N
                       --------------------

Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.

PER CURIAM:*

     Billy N. Stevenson filed a civil rights complaint, alleging

that, while incarcerated, he was injured and was denied proper

medical treatment.    This court must examine the basis of its

jurisdiction on its own motion if necessary.    See Mosley v.

Cozby, 813 F.2d 659, 660 (5th Cir. 1987).    A timely filed notice

of appeal is a jurisdictional prerequisite to appellate review.

Dison v. Whitley, 20 F.3d 185, 186 (5th Cir. 1994).

     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-10633
                                 -2-

     By judgment entered on March 23, 2004, the district court

dismissed Stevenson’s complaint.   Stevenson’s notice of appeal

had to be filed within 30 days of the entry of judgment.      FED.

R. APP. P. 4(a)(1)(A).   Stevenson, however, filed his notice of

appeal the end of May 2004, more than 30 days after the entry of

judgment.

     Stevenson’s notice of appeal, however, could be construed as

a motion to reopen the appeal period.      Rule 4(a)(6), FED. R. APP.

P., allows the district court to reopen the time to file an

appeal if: (1) a motion is filed within 180 days of the entry of

judgment or within 7 days of the receipt of notice of the entry

of judgment, whichever is earlier; (2) the district court finds

that the party was entitled to notice of the entry of judgment

and did not receive such notice within 21 days of the judgment’s

entry; and (3) the district court finds that no party would be

prejudiced if the time period was reopened.

     Stevenson received written notice of the entry of the

district court’s March 23, 2004, judgment on May 13, 2004, which

was not within 21 days of the judgment’s entry.      Stevenson’s

motion was stamped filed May 26, 2004, which was within 180 days

of the entry of the district court’s judgment.      Because Stevenson

received notice of the judgment’s entry on May 13, 2004,

Stevenson had until May 24, 2004, or seven days, to file his

motion to reopen the appeal period.     See FED. R. APP. P. 26(a).

Although the prison mailbox rule applies to Stevenson, his motion
                            No. 04-10633
                                 -3-

does not indicate when he placed it in the prison mail system.

See R. 1, 273-75; Spotville v. Cain, 149 F.3d 374, 376-78 (5th

Cir. 1998) (under prison mailbox rule, pro se prisoner is deemed

to have filed document in federal court when it is deposited in

prison mail system).   Nevertheless, because Stevenson’s motion

was filed only two days late, his motion is presumed to have been

filed timely.    See United States v. Young, 966 F.2d 164, 165 (5th

Cir. 1992) (pro se prisoner entitled to presumption that two-

days-late notice of appeal was timely delivered to prison

authorities for mailing and thus timely filed under prison

mailbox rule).

     Because Stevenson’s motion is timely, the matter must be

remanded to the district court to determine whether to re-open the

time for filing the notice of appeal pursuant to FED. R. APP.

P. 4(a)(6).   Upon making this determination, the district court

should return the case to this court for further proceedings, or

dismissal, as may be appropriate.

     REMANDED.
