Haner v. Sergeant Kaup ( 1998 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 97-20315
(Summary Calendar)
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DAN HANER,
Plaintiff - Appellant,
versus
SERGEANT KAUP; TOMMY THOMAS, Sheriff; HARRIS
COUNTY, TEXAS,
Defendants - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-97-CV-165)
February 3, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Dan Haner, Texas prisoner # 704002, appeals from the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights action as
frivolous. The district court did not abuse its discretion in
dismissing his complaint on statute of limitations grounds. See
*
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that this opinion should not be published and is not precedent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.
Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994).
Haner argues for the first time on appeal that Sergeant Kaup
continually brandished a knife in the cell block, constituting a
continuing tort and that his cause of action did not accrue until
the date of the last action on April 16, 1995. In the alternative,
Haner argues that his cause of action did not accrue until his last
informal attempt to resolve the problem was rejected. Haner has
not shown plain error with respect to his belated new factual
allegations. Robertson v. Plano City of Tex., 70 F.3d 21, 23 (5th
Cir. 1995). Gabel v. Lynaugh, 835 F.2d 124, 125 (5th Cir. 1988).
AFFIRMED.
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