No. 99-50387
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50387
Conference Calendar
BRUCE W. HOUSER,
Plaintiff-Appellant,
versus
BRUCE ARMSTRONG; RALPH
CHRISTIANSEN; KEVIN CLARK;
MICHAEL MCILVANNA; ANTHONY
PATRICK; JESSIE SHUK,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. W-98-CV-239
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April 11, 2000
Before WIENER, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
Bruce W. Houser, Texas prisoner # 460890, argues that the
district court erred in granting the defendants’ motion to
dismiss his 42 U.S.C. § 1983 complaint as time-barred. Houser
argues that the case should be remanded to permit him to amend
his complaint to allege a claim that he was denied access to the
courts.
Houser has not addressed on appeal his contention that the
statute of limitations period was tolled by his pending grievance
*
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that this opinion should not be published and is not precedent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. 99-50387
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proceedings. Thus, Houser has abandoned that claim. See Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Houser’s argument made for the first time on appeal that he
was precluded from timely filing his petition because prison
officials had confiscated his legal materials in retaliation for
his filing complaints against them would require the resolution
of factual issues that were not presented to the district court.
Therefore, this issue is not subject to review. See Diaz v.
Collins, 114 F.3d 69, 71 n.5 (5th Cir. 1997).
Houser cannot demonstrate any error by the district court
relating to his right to amend his complaint because he did not
seek to file an amendment in the district court. Insofar as
Houser is attempting to raise a denial-of-access-to-the-court
claim for the first time on appeal, such claim is not subject to
review because it would involve the resolution of factual issues.
See Diaz, 114 F.3d at 71 n.5.
Houser has submitted with his brief documents to support his
denial-of-access-to-the-court claim which were not presented to
the district court. This court will generally not consider new
evidence on appeal. See United States v. Flores, 887 F.2d 543,
546 (5th Cir. 1989).
Houser has not demonstrated that the district court erred in
dismissing his complaint for failure to state a claim.
Houser has requested the appointment of counsel. Houser has
not demonstrated that this case presents "exceptional
circumstances" warranting the appointment of counsel. Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). Houser’s motion
No. 99-50387
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for appointment of counsel is DENIED.
This appeal is frivolous; it is DISMISSED. 5th Cir. R.
42.2.