Full Opinion

Case: 25-30714 Document: 65-1 Page: 1 Date Filed: 11/10/2026 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED November 10, 2026 No. 25-30714 Thomas B. Plunkett, III Summary Calendar Clerk ____________ Marlon James Pettieway, Plaintiff—Appellant, versus Supervisor Kelly, Individually and in their official capacity; Deputy Dofflemayer, Individually and in their official capacity; Deputy Spurell, Individually and in their official capacity, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:23-CV-352 ______________________________ Before Clement, Engelhardt, and Wilson, Circuit Judges. Per Curiam: * Marlon James Pettieway appeals the district court’s grant of summary judgment on his 42 U.S.C. § 1983 claim for failure to exhaust his administrative remedies. * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 25-30714 Document: 65-1 Page: 2 Date Filed: 11/10/2026 No. 25-30714 The district court entered judgment on Pettieway’s only remaining claim on October 10, 2025. Pettieway’s deadline to appeal was November 10, 2025. See Fed. R. App. P. 4(a)(1)(A). He waited until November 24, 2025, to notice his appeal, rendering it untimely. On October 15, 2025, however, Pettieway did object to the magistrate judge’s report and recommendation granting summary judgment. Upon review of the record, that objection was not enough to constitute a timely appeal. We construe the pleadings of a pro se petitioner liberally. See Hernandez v. Thaler, 630 F.3d 420, 425 (5th Cir. 2011). Where a party’s intent to appeal “is apparent and there is no prejudice to the adverse party,” he “does not forfeit his right of appeal” by mislabeling a notice. Id. (quotation omitted). In Hernandez, the court considered the merits of the petitioner’s appeal because he clearly intended to appeal a particular order even though he listed the wrong case number. Id. Pettieway, on the other hand, did properly identify the order to which his objection applied. He titled the filing “Objection,” and stated, “I object to the Report and Recommendations of the Court.” “It is the substance of the relief sought by a pro se pleading, not the label that the petitioner has attached to it, that determines [its] true nature and operative effect . . . .” Id. at 426; accord Armstrong v. Capshaw, Goss & Bowers, LLP, 404 F.3d 933, 936 (5th Cir. 2005) (“We have frequently instructed district courts to determine the true nature of a pleading by its substance, not its label.”). The substance of the relief Pettieway sought in his October 15 filing was relief from the magistrate judge’s report and recommendation. See generally Cruz v. Lumpkin, No. 21-40613, 2022 WL 1793510, at *1 (5th Cir. June 2, 2022) (noting that a report and recommendation is not final and cannot be appealed). “[A] notice of appeal must specifically indicate the litigant’s intent to seek appellate review . . . .” Smith v. Barry, 502 U.S. 244, 248 (1992) (considering a pro se petitioner’s 2 Case: 25-30714 Document: 65-1 Page: 3 Date Filed: 11/10/2026 No. 25-30714 notice of appeal). So, even when construed liberally, Pettieway’s objection did not constitute a timely appeal. We therefore lack jurisdiction over Pettieway’s appeal. See Bowles v. Russell, 551 U.S. 205, 214 (2007). The appeal is DISMISSED for lack of jurisdiction. 3