     Case: 18-40155      Document: 00514757782         Page: 1    Date Filed: 12/12/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 18-40155                       United States Court of Appeals

                                  Summary Calendar
                                                                                Fifth Circuit

                                                                              FILED
                                                                      December 12, 2018

GEORGE ROSAS,                                                            Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellant

v.

NUECES COUNTY,

              Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:16-CV-167


Before KING, SOUTHWICK, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
       George Rosas appeals the district court’s dismissal of his 42 U.S.C.
§ 1983 complaint and imposition of sanctions for his history of filing frivolous
and vexatious civil actions.
       We have an independent duty to determine whether we have jurisdiction
to review this appeal. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). After
the district court entered its final judgment dismissing this case, Rosas filed a


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                       No. 18-40155
motion to alter or amend judgment, which the district court treated as a motion
under Federal Rule of Civil Procedure 59(e). The magistrate judge submitted
a report recommending that the district court deny the motion, which the
district court adopted in an order filed January 19, 2018. Rosas filed a notice
of appeal. Although he dated the notice February 18, 2018, and signed a
certificate of service stating that he put the notice in the mail the same day,
the notice was not filed with the district court until February 21, 2018.
       A timely notice of appeal in a civil case is a jurisdictional prerequisite
when the time limit is set by statute. Hamer v. Neighborhood Hous. Servs. of
Chi., 138 S. Ct. 13, 17 (2017). Of relevance to this case, 28 U.S.C. § 2107(a)
requires that a notice of appeal in a civil case be filed within 30 days of the
entry of judgment. Although a timely filed Rule 59(e) motion tolls the deadline
for filing a notice of appeal, a litigant must file a notice of appeal within 30
days of “the entry of the order disposing of” the Rule 59(e) motion. Fed. R. App.
P. 4(a)(4)(A)(iv); see also Turner v. Thomas, 698 F. App’x 181, 181 (5th Cir.
2017) (unpublished). Therefore, Rosas was required to file a notice of appeal no
later than February 20, 2018. 1 Because he did not file his notice of appeal until
February 21, 2018, his appeal is untimely, and we lack jurisdiction to consider
it. 2 See Hamer, 138 S. Ct. at 17.


       1  Although 30 days after January 19, 2018, is Sunday, February 18, 2018, Federal
Rule of Appellate Procedure 26(a)(1)(C) instructs that “if the last day [of a period] is a
Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday.” Because Monday, February 19, 2018, was
a legal holiday, Rosas’s deadline to file a notice of appeal was the following day: Tuesday,
February 20, 2018. See Fed. R. App. P. 26(a)(6)(A) (defining “legal holiday” to include
Washington’s birthday, which was observed on February 19, 2018).
        2 Rosas certified that he mailed his notice of appeal on February 18, 2018. The prison

mailbox rule provides that a pro se inmate’s notice of appeal is deemed filed on the date that
the inmate gives the notice of appeal to prison authorities to be mailed to the court rather
than the date it is filed with the court. See Houston v. Lack, 487 U.S. 266, 270-71 (1988). But
“[t]he prison mailbox rule applies to prisoners who are proceeding pro se. When a litigant is
not incarcerated, . . . the prison mailbox rule does not apply.” Brown v. Taylor, 829 F.3d 365,
369 (5th Cir. 2016) (quoting Brown v. Taylor, 569 F. App’x 212, 213 (5th Cir. 2014)
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                                        No. 18-40155
       For the foregoing reasons, we DISMISS the appeal for lack of
jurisdiction.




(unpublished)). The district court determined that Rosas was no longer in custody when it
declined to apply the three-strikes provision of the Prison Litigation Reform Act. Therefore,
because Rosas was no longer in custody, the prison mailbox rule is inapplicable, and the
relevant date for our inquiry is the date the notice of appeal was filed with the district court:
February 21, 2018.
                                               3
