Gant v. Garofano , 119 F. App'x 602 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 16, 2004
Charles R. Fulbruge III
Clerk
No. 04-10555
Conference Calendar
ERIC GANT,
Plaintiff-Appellant,
versus
JOSEPH M. GAROFANO,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-275-A
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Eric Gant appeals the district court’s 28 U.S.C.
§ 1915(e)(2) dismissal of his 42 U.S.C. § 1983 lawsuit as
time-barred. Gant does not specifically assert that his suit was
in fact timely but argues instead that the limitations period
should have been equitably tolled by the pendency of his prior,
unsuccessful state lawsuit. He also argues that the limitations
period should have been equitably tolled by the pendency of his
*
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this opinion should not be published and is not precedent except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. 04-10555
-2-
prior federal lawsuit, which asserted the same claims as the
instant suit and which was dismissed for lack of proper venue.
Because the Texas statute of limitations is borrowed in
42 U.S.C. § 1983 cases, this court also looks to Texas’ equitable
tolling principles. See Rotella v. Pederson, 144 F.3d 892,
894 (5th 1998). Texas permits the tolling of a statute of
limitations when a plaintiff’s legal remedies are precluded by
the pendency of other legal proceedings. See Holmes v. Texas A&M
Univ., 145 F.3d 681, 684-85 (5th Cir. 1998). However, the
pendency of Gant’s state lawsuit does not merit equitable tolling
since it sought a remedy that he need not have pursued. Cf. id.
at 685.
The prior federal lawsuit similarly does not save the
instant suit. Although Gant argues that the earlier suit should
have been transferred rather than dismissed, enabling him to
avoid the limitations problem, his remedy was to oppose the
dismissal by moving for a transfer to the court of proper venue
and/or by appealing the dismissal order, neither of which has he
shown he did. To the contrary, Gant’s own submissions show that
he did not seek a transfer and that the district court determined
that dismissal was appropriate because the claims Gant sought to
raise were previously adjudicated on the merits against him in
state court.
No. 04-10555
-3-
Gant has not demonstrated any justification under Texas law
for equitable tolling. The district court’s judgment is
AFFIRMED.