Garrett v. Anderson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-11282

Summary Calendar

ANDRE L. GARRETT, Plaintiff-Appellant,

versus

JAMES ANDERSON, Officer, Dallas County Jail; NO FIRST NAME HUNTER, Captain, Dallas County Jail; NO FIRST NAME HOOPER, Sergeant, Dallas County Jail

Defendants-Appellees.

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Appeal from the United States District Court for the Northern District of Texas (3:00-CV-1492-X)

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May 17, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Andre L. Garrett, Texas inmate # 829874, appeals the dismissal of his civil rights complaint as time-barred. The district court dismissed Garrett’s complaint under both § 1915A and 1915(e)(2)(B)(i). See R. 38.

Garrett’s explanation about why his complaint was filed late is unavailing because he did not offer the explanation until after the district court dismissed his complaint. Issues raised for the first time on appeal are reviewed only for plain error. United

*

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

States ex rel. Wallace v. Flintco Inc., 143 F.3d 955, 963 (5th Cir. 1998). Factual issues which are capable of resolution by the district court, such as when a complaint is delivered for mailing, cannot rise to the level of plain error. See United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995); Gabel v. Lynaugh, 835 F.2d 124, 125 (5th Cir. 1988). When the face of an IFP complaint clearly shows that the claims asserted are barred by the applicable statute of limitations, dismissal under § 1915 is proper. Gonzales v. Wyatt, 157 F.3d 1016, 1019-20 (5th Cir. 1998). AFFIRMED.