Perry v. Johnson ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-40665
Summary Calendar
GERALD ALLEN PERRY
Plaintiff - Appellant
v.
GARY L JOHNSON; DAWN GROUNDS, Assistant Warden;
KATHY BROWN, Law Library Supervisor; LONA
HOPKINS, Correctional Officer III; RICHARD
SODERLING; TIA RANGE, Correctional Officer III
Defendants - Appellees
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:99-CV-267
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Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit
Judges.
PER CURIAM:*
Gerald Allen Perry, Texas inmate # 644896, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights
complaint. Perry alleged in his complaint that various prison
officials had denied him access to the courts in May 1997 by
failing to provide him with legal assistance in litigating his
*
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that this opinion should not be published and is not precedent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. 02-40665
-2-
federal petition for habeas corpus relief while he was housed in
administrative segregation.
One of the bases for the district court’s dismissal of
Perry’s complaint was its untimeliness. Perry alleged that he
had been denied access to the courts in May 1997 but his
complaint was not filed until October 1999. His complaint was
thus untimely. See Owens v. Okure, 488 U.S. 235, 250 (1989);
Moore v. McDonald, 30 F.3d 616, 620-21 (5th Cir. 1994); TEX. CIV.
PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1999). By failing to
argue the issue of timeliness in his appellate brief, Perry has
abandoned this issue. See Brinkmann v. Dallas County Deputy
Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).
Perry has not shown that the district court abused its
discretion in refusing him leave to amend his complaint.
See Briddle v. Scott, 63 F.3d 364, 379 (5th Cir. 1995). Because
Perry did not file an additional or amended notice of appeal
from the denial of his postjudgment motion, we do not have
jurisdiction to entertain Perry’s challenge to that denial.
FED. R. APP. P. 4(a)(4)(B)(ii); see Taylor v. Johnson, 257 F.3d
470, 475 (5th Cir. 2001).
Perry has moved for the appointment of counsel on appeal.
That motion is DENIED and the judgment of the district court is
AFFIRMED.