* 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-10634

(Summary Calendar)

 

TRACY HICKS,

Plaintiff-Appellant,

versus

JOHNSON COUNTY LAW ENFORCEMENT CTR.;

JOHNSON COUNTY SHERIFF DEP’T; POLICE OFFICER

HOPKINS; WALLS REG’L HOSP.; JOHN DOE, Nurse;

LISA M. POWELL, Assistant Dist. Attorney,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Northern District of Texas

(USDC No. 4:97-CV-265-Y)

- - - - - - - - - -

December 11, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. 

PER CURIAM:*

Tracy Hicks (#673001), a state prisoner, has appealed the

district court’s dismissal of his civil right complaint as

frivolous and the denial of his two motions for reconsideration and

his motion for appointment of counsel. Hicks argues that the

district court improperly resolved a disputed issue of fact in

holding that his complaint is time-barred--the date upon which he

discovered the facts underlying his constitutional claim. For
2

reasons expressed in the district court’s order denying the first

motion for reconsideration, we hold that the district court did not

abuse its discretion by resolving disputed issues of fact in

holding that Hicks’s claims are time barred. See Hicks v. Johnson

County Law Enforcement Center, et al., No. 4:97-CV-265-Y (N.D. Tex.

Apr. 30, 1997) (unpublished); Hicks v. Johnson County Law

Enforcement Center, et al., No. 4:97-CV-265-Y (N.D. Tex. May 28,

1997) (unpublished). 

Hicks also contends that the running of the limitations period

was tolled by the pendency of his state habeas cases. It is

unclear whether the blood sample at issue was used as evidence

against Hicks in his state criminal case. If not, the pendency of

Hicks’s state habeas cases would not have tolled the running of the

limitations period. If the blood sample was used to obtain the

criminal conviction, as the district court correctly reasoned, the

constitutionality of the seizure of the sample would implicate the

validity of Hicks’s conviction. See Hicks v. Johnson County Law

Enforcement Center, et al., No. 4:97-CV-265-Y (N.D. Tex. July 8,

1997) (applying Heck v. Humphrey, 512 U.S. 477, 486 (1994)).

Because Hicks does not contend that his efforts to obtain habeas

relief were successful, Hicks has not satisfied the prerequisites

for filing a claim under the rule in Heck, and the district court

did not abuse its discretion in determining that the complaint is

legally frivolous. Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir.

1994). 
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Hicks contends that the district court erred in refusing to

appoint counsel. There is no automatic right to appointment of

counsel in a civil rights case. Ulmer v. Chancellor, 691 F.2d 209,

212 (5th Cir. 1982). The district court has the discretion to

appoint counsel if doing so would advance the proper administration

of justice. Id.; 28 U.S.C. § 1915(e)(1). This court reviews the

denial of appointment of counsel for abuse of discretion. Jackson

v. Dallas Police Dep’t, 811 F.2d 260, 261 (5th Cir. 1986). Because

the district court had already entered dispositive orders,

appointment of counsel would not have advanced the administration

of justice and the district court did not abuse its discretion in

denying the motion for appointment of counsel.

Hicks has moved the court for leave to supplement the record

with an exhibit which Hicks contends will establish that defendant

Lisa Powell is not entitled to immunity. The district court did

not dispose of the case on grounds of immunity. The proposed

exhibit is not pertinent to any issue in this appeal. The motion

for leave to supplement the record is DENIED.

The appeal is frivolous and must be DISMISSED. See Howard v.

King, 707 F.2d 215, 219-20 (5th Cir. 1983); 5th Cir. R. 42.2. 

We caution Hicks that any additional frivolous appeals filed by him

will invite the imposition of sanctions. To avoid sanctions, Hicks

is further cautioned to review any pending appeals to ensure that

they do not raise arguments that are frivolous. 
4

APPEAL DISMISSED; MOTION FOR LEAVE TO SUPPLEMENT THE RECORD DENIED;

SANCTION WARNING ISSUED.