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.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:01-CV-215-R
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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that this opinion should not be published and is not precedent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.