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. 09-40923

Summary Calendar

CARL PEACOCK

Plaintiff-Appellant

v.

J.A.M. DISTRIBUTING, INC.

Defendant-Appellee

Appeal from the United States District Court 

for the Eastern District of Texas, Beaumont Division

USDC No. 9:08-cv-00229

Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Appellant Carl Peacock appeals from an order denying his motion for relief

from judgment. Finding no abuse of discretion, we affirm.

Appellant brought suit claiming discrimination based on race. His suit

was dismissed by the district court pursuant to Fed. R. Civ. P. 12(b)(6) on August

25, 2009, because the suit was not timely filed within the statutory limit.

Thereafter, on August 28, Peacock filed his “motion to reconsider” which was

United States Court of Appeals

Fifth Circuit

F I L E D

February 8, 2010

Charles R. Fulbruge III

Clerk

Case: 09-40923 Document: 00511022542 Page: 1 Date Filed: 02/08/2010
No. 09-40923

2

properly characterized as a motion for relief from judgment pursuant to Fed. R.

Civ. P. 60(b). Peacock’s motion, however, did not raise any new grounds

concerning the statute of limitations issues which were the basis for the August

25 dismissal. The “motion to reconsider” was denied on September 8, 2009.

Peacock’s notice of appeal specifically and only references an appeal from the

September 8, 2009 order denying his motion for relief from judgment.

Accordingly,the issue which this Court can review is the September 8, 2009

order. We have no jurisdiction to review the merits of the underlying judgment

or any other judgment or issues save the ruling on Peacock’s motion to

reconsider. Pope v. MCI Telecomm. Corp., 937 F.2d 258, 266 (5th Cir. 1991). 

Peacock’s brief on appeal is almost entirely devoted to his assertion that

he has suffered discrimination at the hands of Appellee and relates to the merits

of the judgment of August 25, 2009, which is not before us. To the extent that

Peacock’s pro se brief, which we liberally construe, suggests that a previous suit

involving the same claim which was dismissed without prejudice for want of

prosecution, tolled the limitations period or undermines the order denying his

motion to reconsider, such arguments are unavailing. This tolling argument was

not made in the motion to reconsider and, in any event, a timely filed Title VII

suit dismissed for want of prosecution does not toll the 90-day limitations period.

Price v. Digital Equipment Corp., 846 F.2d 1026, 1027 (5th Cir. 1988) (citing

Taylor v. Bunge Corp., 775 F.2d 617, 618 (5th Cir. 1985)). Peacock has not

shown any shortcomings in the order appealed from and certainly no abuse of

discretion. The order denying the motion to reconsider under Fed. R. Civ. P.

60(b) relief is AFFIRMED, and therefore the judgment is also AFFIRMED. Any

and all other relief whether requested by Appellant or Appellee is denied, save

for the cost on appeal, which the Clerk is to assess against Appellant.

Case: 09-40923 Document: 00511022542 Page: 2 Date Filed: 02/08/2010