UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 97-40563
Summary Calendar
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BENNIE FINISTER,
Plaintiff-Appellant,
versus
B. SPRINGER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
(G-95-CV-763)
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June 3, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Bennie Finister, Texas state prisoner #649506, appeals the
dismissal of his civil rights complaint as barred by the applicable
two-year statute of limitations. The incident about which Finister
complains occurred on 25 November 1993. Although Finister’s
complaint is dated as executed on 24 November 1995, within the
limitations period, it was not filed until 6 December 1995, outside
that period.
*
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that this opinion should not be published and is not precedent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.
The magistrate judge recommended that the action be dismissed
as time-barred. And, in accordance with Douglass v. United
Services Automobile Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)
(en banc), the magistrate judge warned the parties that “[f]ailure
to file written objections within [ten days of receipt of the
Report and Recommendation] shall bar an aggrieved party from
attacking on appeal the proposed factual findings and legal
conclusions accepted by the District Court, except upon grounds of
plain error”.
On 27 March 1997, Finister requested additional time to file
an objection to the magistrate judge’s report and recommendation.
The magistrate judge granted the motion, giving Finister an
extension until 18 April. On 17 April, Finister filed a second
request for an extension of time. By order entered 28 April, the
district court denied Finister’s second request for additional time
and accepted the magistrate judge’s report and recommendation,
dismissing Finister’s action as time-barred. On 29 April, the day
after judgment was entered, Finister filed untimely objections to
the magistrate judge’s report and recommendation, in which he
asserted that he placed the complaint in the prison mail system on
24 November 1995.
Finister contends that the district court erred by dismissing
his action as time-barred, because he deposited his complaint into
the prison’s internal mail system on 24 November 1995, within the
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limitations period. For limitations purposes, Finister’s complaint
was filed on the date he delivered it to prison officials for
mailing to the district court. See Cooper v. Brookshire, 70 F.3d
377, 379 (5th Cir. 1995).
It cannot be determined from the record, however, whether
Finister deposited his complaint into the prison mail system within
the limitations period. Ordinarily, we would remand the case to
the district court for the limited purpose of making such a
determination. See Thompson v. Montgomery, 853 F.2d 287, 288 (5th
Cir. 1988). But, because Finister failed to timely object to the
magistrate judge’s report and recommendation, we review his
contention only for plain error. See Douglass, 79 F.3d at 1428-29.
Finister has not demonstrated plain error, because the date on
which he deposited his complaint into the prison mail system is a
factual determination. “Only in the rarest of circumstances do
errors involving issues of fact amount to plain error”. Lackey v.
Johnson, 116 F.3d 149, 153 (5th Cir. 1997); see also Robertson v.
Plano City of Texas, 70 F.3d 21, 23 (5th Cir. 1995) (“because the
nature of the claimed error is a question of fact, the possibility
that such a finding could rise to the level of obvious error
required to meet part of the standard for plain error is remote”).
AFFIRMED
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