Kelly v. City of Wichita Fall

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 27, 2003
• Docket: 02-11122
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Fifth Circuit IN THE UNITED STATES COURT OF APPEALS March 27, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk No. 02-11122 Summary Calendar

LEE W. KELLY,

Plaintiff-Appellant,

versus

CITY OF WICHITA FALLS, TEXAS,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 7:01-CV-215-R --------------------

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Lee W. Kelly, proceeding pro se, appeals the district

court’s dismissal of his 42 U.S.C. § 1983 complaint as time

barred. FED. R. CIV. P. 12(b)(6). Kelly does not dispute the

district court’s determination that the limitations period is

supplied by Texas law, nor does he dispute the determination that

his complaint was filed after the two-year limitations period had

expired. See Rodriguez v. Holmes, 963 F.2d 799, 803 (5th Cir.

1992); TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a). Kelly argues,

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-11122 -2-

however, that the limitations period should not prevail in this

matter because he was unable to obtain the services of a lawyer

to pursue his claims.

“In applying the forum state’s statute of limitations, the

federal court should also give effect to any applicable tolling

provisions.” Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir.

1993). Kelly has not shown that Texas law provides tolling for

parties who are unable to secure the services of an attorney.

“Even if Texas does not provide a tolling provision, federal

courts possess the power to use equitable principles to fashion

their own tolling provision in exceptional situations.” Slack v.

Carpenter, 7 F.3d 418, 420 (5th Cir. 1993)(quotations and

citation omitted). However, mere lack of representation will not

support equitable tolling. See Barrow v. New Orleans S.S. Ass’n,

932 F.2d 473, 478 (5th Cir. 1991). Because Kelly has failed to

show that the district court erred in dismissing his complaint,

the judgment of the district court is hereby AFFIRMED. Kelly’s

motions for the appointment of appellate counsel are DENIED.

AFFIRMED; MOTIONS DENIED.