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

                                                              FILED
                                                              April 15, 2008

                             No. 05-51679                Charles R. Fulbruge III
                           Summary Calendar                      Clerk




JAVIER PEDRO MANRIQUEZ

                                 Plaintiff - Appellant
v.

UNITED STATES OF AMERICA

                                 Defendant - Appellee
________________________________________________________________________
                         CONSOLIDATED with
                            Case No. 05-51680

JAVIER PEDRO MANRIQUEZ

                                 Plaintiff - Appellant
v.

MICHAEL MACHEN, MD; UNITED STATES OF AMERICA

                                 Defendants-Appellees




              Appeals from the United States District Court
                    for the Western District of Texas
                         USDC No. 3:03-CV-064
                                       No. 05-51679

Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
       This is a medical malpractice case. Javier Pedro Manriquez was injured
in a car accident and alleged that he suffered further injury at the hands of two
medical residents who cared for him at the R.H. Thomason General Hospital in
El Paso, Texas (“Thomason Hospital”). Because Manriquez’s notice of appeal in
suit number 3:03-CV-507 is untimely and his notice of appeal in suit number
3:03-CV-064 is not an appeal from a final order or judgment, we dismiss.
                           I. FACTS AND PROCEEDINGS
       Manriquez was in a serious car accident and was taken to the emergency
room at Thomason Hospital with a dislocated hip. On December 11, 2003,
Manriquez filed suit in district court against Thomason Hospital and against the
United States under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), 2671,
alleging that his hip was further injured by two medical residents during their
attempts to treat him.1 At the time of the alleged malpractice, the medical
residents were on active duty in the U.S. Army and were enrolled in a medical
training program run by Texas Tech University Health Services Center (“Texas
Tech”).
       That suit was docketed in the district court under case number 3:03-CV-
507 (“Suit I”). Manriquez also filed suit against Texas Tech in Texas state court
in December 2003. More than two years later, in January 2005, Manriquez
amended his state court suit against Texas Tech to include the medical
residents, and the United States removed the case and moved to substitute itself




       *
         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.
       1
           Thomason Hospital was later dismissed from the suit at Manriquez’s request.

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as the defendant. That suit was docketed in the district court as case number
3:03-CV-064 (“Suit II”).
       The government moved for summary judgment in Suit I on January 20,
2005. Suit I and Suit II were consolidated on March 24, 2005. On September
23, 2005, the district court granted the United States’ motion for summary
judgment in Suit I. On the same day, the district court issued a final judgment
severing Suit I and Suit II and dismissing Suit I.
       Also on September 23, 2005, the district court issued an order dismissing
the United States as a defendant in Suit II “for the reasons set forth in the
Memorandum Opinion and Order” issued in Suit I. The district court reiterated
its order that Suit I and Suit II be severed, and further ordered that “any
additional pleadings in cause number EP-05-CA-0064-DB [Suit II] be filed by the
parties under that case number, and not EP-03-CA-0507-DB [Suit I].” The
district court did not state that its September 23, 2005 order in Suit II was a
final order.2
       Manriquez filed a notice of appeal in the district court on Monday,
November 21, 2005, under the docket number for Suit II. He then filed an
untimely, “amended” notice of appeal on Monday, November 28, 2005, listing the
docket numbers for both Suit I and Suit II. Manriquez incorrectly states in his
brief on appeal that both notices of appeal were filed “within the sixty days
prescribed by Rule 4(a)(1)(B)” of the Federal Rules of Appellate Procedure. The
November 21, 2005 notice, which only listed Suit II, was filed on the fifty-ninth
day following the September 23, 2005 order in Suit II. The November 28, 2005
notice, which listed Suit I and Suit II, was filed sixty-six days after the entry of


       2
         Presumably, the order was not labeled as a final judgment because other defendants
remained in the case. In any case, the issue is waived. Manriquez did not state that he was
appealing from the September 23, 2005 order in Suit II, and he did not include this order in
his record excerpts as required by Rule 30(a)(1)(C) of the Federal Rules of Appellate Procedure.


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                                 No. 05-51679

final judgment in Suit I. The November 28, 2005 notice was therefore untimely
under Rule 4(a)(1)(B), computed according to Rule 26(a) of the Federal Rules of
Appellate Procedure.
      In his statement of jurisdiction Manriquez only asserts that he is
appealing from the final judgment in Suit I, which he cites by record page. His
notice of appeal with regard to Suit I was untimely, and we lack jurisdiction to
consider it. FED. R. APP. PROC. 4(a)(1)(B). We also lack jurisdiction over his
appeal of Suit II because Manriquez failed to identify a final order or judgment
in that case from which appeal would have been proper. Borne v. A & P Boat
Rentals No. 4, Inc., 755 F.2d 1131, 1133 (1985).
                             II. CONCLUSION
      The appeal is DISMISSED.




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