     Case: 15-41457      Document: 00513904504         Page: 1    Date Filed: 03/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                    No. 15-41457                                    FILED
                                  Summary Calendar                              March 9, 2017
                                                                               Lyle W. Cayce
                                                                                    Clerk
HOWARD F. CARROLL,

                                                 Plaintiff-Appellant

v.

JOHN RUPERT, Warden, Coffield Unit; MICHAEL ROARK, Lieutenant,
Coffield Unit; MICHAEL COLLUM, Lieutenant, Coffield Unit; GUY
FERGUSON, Lieutenant, Coffield Unit; BRETT BUCKLEY; et al,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:15-CV-569


Before BENAVIDES, PRADO, and COSTA, Circuit Judges.
PER CURIAM: *
       The court sua sponte grants rehearing, withdraws its previous opinion
in this matter, Carroll v. Rupert, No. 15-41457, 2017 WL 763843 (5th Cir. Feb.
24, 2017) (unpublished), and substitutes the following.
       Howard F. Carroll, Texas prisoner # 1067360, appeals the dismissal,
without prejudice, of his 42 U.S.C. § 1983 complaint for want of prosecution


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-41457      Document: 00513904504   Page: 2   Date Filed: 03/09/2017


                                 No. 15-41457

and failure to obey an order. Carroll argues that the district court erred in
dismissing his complaint. He also challenges the magistrate judge’s denial of
his motion for appointment of counsel. He further requests the appointment
of appellate counsel.
      The district court construed Carroll’s October 2015 objections to the
magistrate judge’s report as a motion for relief from judgment, and it granted
relief, vacating its order of dismissal and judgment. We construe the district
court’s action as arising under Federal Rule of Civil Procedure 59(e). See
Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994). In view of the
foregoing, this appeal is moot. See Ctr. for Biological Diversity, Inc. v. BP
America Prod. Co., 704 F.3d 413, 431 (5th Cir. 2013).
      Accordingly, the appeal is DISMISSED AS MOOT. Carroll’s request for
appointment of appellate counsel is DENIED AS MOOT.




                                       2
