                    UNITED STATES COURT OF APPEALS

                               FIFTH CIRCUIT
                                ___________

                                No. 91-4015
                                ___________

           ESMAEL BALBOA TIJERINA,

                                   Plaintiff-Appellant,

           v.

           LARRY V. PLENTL,
           Assistant Warden, ET AL.,

                              Defendants-Appellees.
________________________________________________________________

      Appeal from the United States District Court for the
                    Eastern District of Texas
________________________________________________________________
                       (February 11, 1993)

 ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion 04/16/92, 5 Cir., 199_, (_____F.2d_____)

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

EMILIO M. GARZA, Circuit Judge:

     The Petition for Rehearing is DENIED and no member of this

panel nor Judge in regular active service on the Court having

requested that the Court be polled on rehearing en banc, (Federal

Rules of Appellate Procedure and Local Rule 35) the Suggestion for

Rehearing En Banc is DENIED.1          We, however, withdraw our prior

opinion and substitute the following:

     1
            We express no opinion on the merits of Appellees' Petition for
Rehearing or their Suggestion for Rehearing En Banc.

                                      1
      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 (1988). 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.         Finding that

Tijerina's motion for new trial was timely, we dismiss his appeal

as premature.

                                      I

      Following a jury trial which resulted in judgment for the

defendants))entered on December 6, 1990))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 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.               The

district court further held that even if Tijerina's motion was

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




                                      2
following the entry of a judgment,2 the motion lacked merit.              On

March 21, 1991, 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.

                                     A

     In determining timeliness of a motion for new trial, the

proper procedure is to count days from the entry or docketing date

of the judgment, 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 and not date of filing), to the

date the motion was served.     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).     Accordingly, Tijerina had ten days from December 6,



     2
          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, 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.

                                     3
19903 to move for a new trial (page 8 of the docket sheet states

that judgment was entered on December 6, 1990, and that Tijerina

served his motion for new trial on December 13.             See Fed. R. Civ.

P. 59(b) ("A motion for a new trial shall be served not later than

10 days after the entry of the judgment." (emphasis added)).

        In denying Tijerina's motion for new trial as untimely, 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. Accordingly we

find that the district court incorrectly denied Tijerina's motion

for a new trial as untimely.

                                         B

        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.4             Therefore, Tijerina's motion


      3
            In fact, Tijerina had until December 20 to serve his motion for
new trial. See Fed. R. Civ. P. 6(a) ("When the period of time prescribed or
allowed is less than 11 days intermediate Saturdays, Sundays, and legal
holidays shall be excluded in the computation.").
        4
             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

                                         4
for new trial extinguished his notices of appeal.5               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.) (notice of appeal filed during pendency of motion was of

no effect), cert. denied, ___ U.S. ___, 111 S. Ct. 2417, 115 L. Ed.

2d 1080 (1991).       Because the district court has not properly

disposed    of   Tijerina's    motion       for   new   trial,   we   lack   the

jurisdiction to consider Tijerina's appeal.              See Fed. R. App. P.

4(a) ("A notice of appeal filed before the disposition of any of

the above motions shall have no effect."); Harcon Barge Co., Inc.

v. D & G Boat Rentals, Inc., 784 F.2d 665, 668 (5th Cir.) (a post-

trial motion seeking to amend judgment, which is served within ten

days after entry of judgment, must be considered a Rule 59(e)

motion for the purposes of Rule 4 of the Federal Rule of Appellate

Procedure), cert. denied, 479 U.S. 930, 107 S. Ct. 398, 93 L. Ed.

2d 351 (1986).




      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).
      5
            For the same reasons, Tijerina's motion to proceed IFP of
March 21, 1991))which "is the substantial equivalent of a notice of appeal,"
Fischer v. United States Dept. of Justice, 759 F.2d 461, 464 (5th Cir.
1985)))is also extinguished.

                                        5
                                     III

     Accordingly, we DISMISS Tijerina's appeal as premature.6




      6
            Tijerina alleges that prison guards attacked him in retaliation
for his exercise of prison grievance procedures))a § 1983 excessive force
action alleging an Eighth Amendment 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, 117 L.Ed. 2d 156 (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, see id. at 997, thereby overruling the significant injury
standard we previously relied upon. See Huguet v. Barnett, 900 F.2d 838, 841
(5th Cir. 1990). The district court should reconsider its judgment and
Tijerina's Motion for New Trial in light of Hudson.

                                      6
