                                                                                        United States Court of Appeals
                                                                                                 Fifth Circuit
                                                                                               F I L E D
                      IN THE UNITED STATES COURT OF APPEALS
                                                                                             November 26, 2003
                                   FOR THE FIFTH CIRCUIT
                                                                                          Charles R. Fulbruge III
                                                                                                  Clerk

                                            No. 03-40600
                                          Summary Calendar



DAVID GENE MORRIS,

                                                                                         Plaintiff-Appellee,

                                                 versus

CHRISTY POWELL; ET AL,


                                                          Defendants,

CHRISTY POWELL; CHARLES POWELL,
Major; ANDY MASSINGILL, Warden,

                                                                                     Defendants-
                                                          Appellants.

                         ---------------------------------------------------------
                           Appeal from the United States District Court
                                   for the Eastern District of Texas
                                       USDC No. 5:99-CV-263
                         ---------------------------------------------------------

Before SMITH, DEMOSS and STEWART, Circuit Judges.

PER CURIAM:*

       Christy Powell, Charles Powell, and Andy Massingill, all named defendants in a civil rights

suit filed by David Gene Morris, Texas prisoner # 285845, appeal the district court’s denial of their


       *
           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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
summary judgment motions based upon qualified immunity. 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).

Under FED. R. APP. P. 4(a)(4), the filing of a timely FED. R. CIV. P. 59(e) motion renders a notice

of appeal ineffective until an order is entered disposing of the motion. A motion requesting

reconsideration of a judgment is treated as a FED. R. CIV. P. 59 motion for purposes of FED. R. APP.

P. 4(a)(4), regardless of the label applied to the motion, if it is made within the 10-day limit for FED.

R. CIV. P. 59(e) motions. See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994); Harcon

Barge Co. v. D & G Boat Rentals, Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc).

        Within 10 days of the district court’s denial of their summary judgment motions, the Powells

and Massingill filed a motion for reconsideration. Given the timing of the motion, this court must

treat it as a FED. R. CIV. P. 59(e) motion, and, because the district court has not yet ruled on the

motion, the notice of the appeal in this case is not yet effective. Accordingly, this case must be

remanded, and the record returned to the district court, so that the district court may rule upon the

FED. R. CIV. P. 59(e) motion. See Burt v. Ware, 14 F.3d 256, 260-61 (5th Cir. 1994).

        LIMITED REMAND.




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