Gunn v. Bell County ( 1998 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50929
Summary Calendar
_____________________
THOMAS ALAN GUNN,
Plaintiff-Appellant,
versus
BELL COUNTY, Texas; BELL COUNTY, Sheriff;
UNIDENTIFIED, Sheriff’s Deputies for Bell County,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-96-CV-211)
_________________________________________________________________
May 21, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Thomas Alan Gunn, federal prisoner # 60879-080, appeals the
dismissal of his 42 U.S.C. § 1983 action. Gunn contends that the
district court erred by dismissing his claims, pursuant to FED. R.
CIV. P. 12(b)(6), against Bell County and the Bell County Sheriff
for failure to state a claim upon which relief may be granted, and
by denying his “Motion to Amend Jurisdiction to Include 28 U.S.C.
§ 1332".
*
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that this opinion should not be published and is not precedent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.
Based upon our review of the record, we AFFIRM the dismissal
of the claims against Bell County and the Sheriff, and the denial
of Gunn’s motion to amend jurisdiction, for essentially the reasons
stated by the district court. Gunn v. Bell County, Texas, No. W-
96-CA-211 (W.D. Tex. September 30, 1997). Gunn’s conclusional
allegation, made for the first time on appeal, that the defendants
acted with gross negligence or deliberate indifference, is not
reversible plain error. See Robertson v. Plano City of Texas, 70
F.3d 21, 23 (5th Cir. 1995).
Gunn also contends that the district court erred by dismissing
with prejudice his claims against the unidentified deputies,
pursuant to FED. R. CIV. P. 4(m). Even assuming that the district
court erred by dismissing those claims with prejudice, any error is
harmless, because any amended complaint filed by Gunn to substitute
named defendants would not relate back to the date of his original
complaint under FED. R. CIV. P. 15(c)(3) and, therefore, would be
time-barred. See Jacobsen v. Osborne, 133 F.3d 315, 320 (5th Cir.
1998); see also TEX. CIV. PRAC. & REM. CODE § 16.003; Burrell v.
Newsome, 883 F.2d 416, 418 (5th Cir. 1989).
AFFIRMED
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