United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 19, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-10058
Summary Calendar
CHARLES ARCHIBALD MCMILLAN,
doing business as Mack’s Hack,
Plaintiff-Appellant,
versus
YELLOW CAB, of Wichita Falls and Houston Texas Inc.;
JAY W. ELSTON; CITY OF WICHITA FALLS TEXAS;
TEXAS WICHITA COUNTY; WICHITA COUNTY DISTRICT ATTORNEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:02-CV-41-KA
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Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Charles Archibald McMillan, doing business as Mack’s Hack,
appeals the dismissal of his 42 U.S.C. § 1983 complaint for
failure to state a claim. McMillan argues that his claims were
not barred by the statute of limitations and that the district
court erred in dismissing his complaint.
*
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that this opinion should not be published and is not precedent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. 03-10058
-2-
McMillan does not challenge the magistrate judge’s findings
that his pleadings were all nonsensical and that they failed to
state a cognizable cause of action. Although pro se briefs are
afforded liberal construction, see Haines v. Kerner, 404 U.S.
519, 520-21 (1972), even pro se litigants must brief arguments in
order to preserve them. Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993). Because McMillan does not address the
magistrate judge’s dismissal of his complaint for failure to
state a claim, he has abandoned this issue on appeal.
Even assuming, arguendo, that McMillan stated a cognizable
42 U.S.C. § 1983 claim against the defendants, his claim is
prescribed. The actions underlying McMillan’s complaint began in
the early 1980s and continued until sometime in 1986. Thus,
McMillan had two years, until 1988, to file a timely 42 U.S.C.
§ 1983 complaint against the defendants for alleged violations of
his civil rights. See Owens v. Okure, 488 U.S. 235, 250 (1989);
TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2003). McMillan
has not demonstrated that he is entitled to equitable tolling of
the limitations period. See Holmes v. Texas A&M Univ., 145 F.3d
681, 684-85 (5th 1998); TEX. CIV. PRAC. & REM. CODE ANN. § 16.001
(West 2003). Therefore, McMillan’s complaint, which was filed in
February 2002, is barred by the statute of limitations. Because
McMillan can “prove no set of facts in support of his claim which
would entitle him to relief,” the district court did not err in
dismissing his complaint for failure to state a claim. See
No. 03-10058
-3-
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284-85
(5th Cir. 1993). Accordingly, the judgment of the district court
is affirmed.
In connection with his appeal, McMillian has filed a motion
for authorization to file an out-of-time reply brief. In light
of the disposition of his appeal, McMillan’s motion is denied.
AFFIRMED; MOTION DENIED.