     Case: 10-20636 Document: 00511442628 Page: 1 Date Filed: 04/12/2011




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

                                                                              FILED
                                                                             April 12, 2011
                                     No. 10-20636
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

RHONDA TAYLOR, on the behalf of Kevin R. Gordon,

                                           Plaintiff - Appellant

v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice; THE UNIVERSITY OF TEXAS MEDICAL BRANCH
CORRECTIONAL MANAGED HEALTH CARE; TEXAS DEPARTMENT OF
CRIMINAL JUSTICE; UNIVERSITY OF TEXAS MEDICAL BRANCH;
OWEN MURRAY, Executive Director, University of Texas Medical Branch,

                                           Defendants - Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-CV-2790


Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       This appeal arises from a suit originally filed by Rhonda Taylor on behalf
of her adult son, Kevin Gordon. The district court dismissed Taylor’s suit for
lack of subject matter jurisdiction because she did not have standing to sue on

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-20636 Document: 00511442628 Page: 2 Date Filed: 04/12/2011




Gordon’s behalf. Gordon refiled himself and the case proceeded to settlement.
After determining that the defendants had satisfied the terms of the settlement,
the district court granted their motion to dismiss Gordon’s lawsuit. Taylor
appealed that dismissal. We DISMISS the appeal.
                             FACTS AND PROCEEDINGS
      Kevin Gordon is an inmate of the Texas Department of Criminal Justice
(TDCJ). Rhonda Taylor is Gordon’s mother and the court-appointed guardian
of his person. Taylor, proceeding pro se, filed suit on Gordon’s behalf 1 against
the TDCJ, Brad Livingston, in his official capacity as Executive Director of the
TDCJ, the University of Texas Medical Branch (UTMB), and Owen Murray, in
his official capacity as Executive Director of UTMB (collectively, “Defendants”).
Taylor’s complaint sought monetary and injunctive relief under the Civil Rights
Act of 1871, 42 U.S.C. § 1983, for violations of Title II of the Americans With
Disabilities Act, 42 U.S.C. § 12132 (ADA), and Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794 (RA), based on Defendants’ alleged discrimination against
Gordon based on his mental health disabilities. “[I]n the interests of justice,”
the district court appointed counsel for Taylor.
      Defendants moved to dismiss the complaint because Taylor did not have
standing to sue on Gordon’s behalf. Taylor based her standing on an order from
the County Court of McLennan County, Texas appointing her permanent
guardian of Gordon’s person and listing six powers specifically granted to her.
The list does not include the authority to sue and defend on Gordon’s behalf.
      The magistrate judge recommended that the district court dismiss the
action without prejudice under Federal Rule of Procedure 12(b)(1) for lack of
subject matter jurisdiction and provide Taylor with time to refile if she could


      1
          Taylor filed two separate suits that were consolidated by the district court.

                                               2
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obtain authority to sue on Gordon’s behalf2 or for Gordon to proceed on his own.
No party filed an objection to the magistrate judge’s report and recommendation;
the district court adopted it as written. Taylor did not appeal.
       Gordon, represented by Hall, filed an amended complaint.                      The case
proceeded through motions and discovery with Gordon as plaintiff. Shortly
before trial, Gordon and Defendants reached a settlement agreement. The
district court documented the details of their agreement on the record.
Approximately six months later, Defendants filed a motion to dismiss Gordon’s
suit because they had satisfied the terms of the settlement agreement. Gordon
opposed the motion. The district court held a hearing on the motion and granted
it. Gordon did not appeal. Taylor filed a timely notice of appeal challenging
granting of that motion.
                                       DISCUSSION
       “Federal courts have no jurisdiction . . . unless a case or controversy is
presented by a party with standing to litigate.” Nevares v. San Marcos Consol.
Ind. Sch. Dist., 111 F.3d 25, 26 (5th Cir. 1997). “Without jurisdiction the court
cannot proceed at all in any cause. Jurisdiction is power to declare the law, and
when it ceases to exist, the only function remaining to the court is that of
announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (internal quotation marks omitted). For that
reason, we must consider whether Taylor, a non-party to the action below, has
standing to pursue this appeal. Id.



       2
         The court ruled that only a guardian of Gordon’s estate would have authority to sue
and defend on his behalf. Compare Tex. Probate Code § 767 (setting forth the powers and
duties of guardians of the person), with Tex. Probate Code § 768 (setting forth the powers and
duties of guardians of the estate, which includes “bring[ing] and defend[ing] suits by or against
the ward”).

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      As noted above, Taylor did not appeal the district court’s order dismissing
her suit against Defendants for lack of standing to sue on Gordon’s behalf. To
the extent that Taylor’s pro se notice of appeal and briefing may be construed as
a belated attempt to do so, it is untimely. F ED. R. A PP. P. 4(a)(1)(A) (“In a civil
case . . . the notice of appeal . . . must be filed with the district clerk within 30
days after . . . the order appealed from is entered.”). The court cannot consider
this issue.
      It is clear that “[a] person who is not a party to the proceedings below
generally cannot appeal the court’s judgment.” EEOC v. La. Office of Cmty.
Servs., 47 F.3d 1438, 1442 (5th Cir. 1995). “[C]ourts have granted exceptions
where the non-part[y] actually participated in the proceedings below, the
equities weigh in favor of hearing the appeal, and the non-part[y] ha[s] a
personal stake in the outcome.” Id.; see also Samnorwood Indep. Sch. Dist. v.
Tex. Educ. Agency, 533 F.3d 258, 265 (5th Cir. 2008). Taylor has not shown that
an exception is warranted and she has not asserted any other cognizable basis
for her appeal.
                                 CONCLUSION
      For the reasons set forth above, we DISMISS the appeal.




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