IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-41357 

 No 00-41443 

Summary Calendar

 

VINCENT EDWARD HOLMES,

 Plaintiff-Appellant,

versus

PAUL COGWELL, Etc.; ET AL.,

 

Defendants,

ROBERT B. TOMES, Bob Tomes Ford,

 Defendant-Appellee,

VINCENT EDWARD HOLMES,

 Plaintiff-Appellant,

versus

PAUL COGWELL, McKinney Police Department; 

MARK PEARSON, Texarkana Police Department; 

RANDY VANDERTUIN, McKinney Police 

Department; ROBERT DEAN, McKinney Police

Department; ROBERT B. TOMES, Bob Tomes 

Ford; BRIAN SMITH, Bob Tomes Ford; BENJAMIN

J. WOOD, Bob Tomes Ford; ERIC A. GONZALES; 

TOMMY GLENN PADRON; MICHAEL WAYNE

JACKSON; R. M. SPEARS, Investigator; GERRICK

WALKER; LARRY ROBINSON, Chief of Police;

ISSAC TURNER, City Manager,

 

 Defendants-Appellees.

--------------------------------------------------------

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:00-CV-149

--------------------------------------------------------
 

 

*

 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.

October 26, 2001

Before DAVIS, BENAVIDES and STEWART, Circuit Judges:

PER CURIAM:*

Vincent Edward Holmes appeals the dismissal of his 42 U.S.C. § 1983 lawsuit, asserting

various constitutional violations and state-law claims arising out of his arrest, detention, trial, and

ultimate acquittal on drug charges. Holmes first argues that the district court’s determination that

his claims against Robert B. Tomes were untimely was error because there is no federal statute of

limitations and because any limitations period did not begin to run until he was acquitted. Because

he raises this argument for the first time on appeal, this court will not consider it. See Shanks v.

AlliedSignal, Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999); Burch v. Coca-Cola, 119 F.3d 305, 319

(5th Cir. 1997). Moreover, even if the court were to consider the argument that dismissal of the

claims as untimely was error, Holmes has not briefed any argument addressing the district court’s

alternative conclusion that Tomes was not a state actor for purposes of 

§ 1983, and has therefore waived any challenge to the alternative reasons for the district court’s

dismissal. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). Accordingly, the district

court’s Fed. R. Civ. P. 12(b)(6) dismissal of the claims against Tomes is AFFIRMED.

Holmes also challengesthe district court’s dismissal ofthe remainder of his claims against the

remaining defendants. The district court’s order dismissing the remaining claims under Fed. R. Civ.

P. 41(b) due to Holmes’ failure to prosecute was not an abuse of discretion. See McNeal v. Papasan,

842 F.2d 787, 789 (5th Cir. 1988); see also Salinas v. Sun Oil Co., 819 F.2d 105, 106 (5th Cir.

1987). Accordingly, that order is also AFFIRMED.
 

 

Holmes’ argument that the district court erred in denying his motion for the appointment of

counsel is without merit. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). His motion

for the appointment of appellate counsel is DENIED.

AFFIRMED; MOTION DENIED.