United States Court of Appeals

Fifth Circuit



## FILED

September 20, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-51445

Summary Calendar

JESUS SOLIZ, also known as Jesse Soliz,

Plaintiff-Appellant,

versus

TROY C. BENNETT, JR., In his individual and official capacity;

JOHN JASUTA, In his individual and official capacity;

PATRICK S. FLANIGAN, District Attorney, San Patricio County;

PATRICIA NORTON, Clerk of San Patricio County; ALONZO T.

RODRIGUEZ, Honorable, 36th District Court, San Patricio

County; LEROY MOODY, Sheriff of San Patricio County; TERRY

SIMPSON, Sheriff Deputy, San Patricio County Sheriff’s

Department; BILL STRAIT; JEAN WEASLEY STRAIT; DAVID DIAZ;

JOSEPH E. GARCIA, III; RANDALL E. PRETZER,

Defendants-Appellees.

* * * * *

Consolidated with

No. 04-41135

* * * * *

JESUS (JESSE) SOLIZ,

Plaintiff-Appellant,

versus

PATRICK FLANIGAN; PATRICIA NORTON; SHARON ANDERSON; LUCINDA

RODRIGUEZ; 36TH JUDICIAL DISTRICT COURT, SAN PATRICIO COUNTY,

TEXAS,

Defendants-Appellees.

-------------------- Appeals from the United States District Court

for the Western District of Texas

(A-02-CV-472-SS)

-------------------- Before JONES, WIENER, and DeMOSS, Circuit Judges* Pursuant to 5 TH C IR

. R. 4 7.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

2 PER CURIAM: *

Plaintiff-Appellant Jesus Soliz, Texas prisoner number 496252,

cha llenges the dismissal of his two actions asserting

constitutional claims under 42 U.S.C. § 1983. We have consolidated

his appeals. S ee F ED

. R. A PP

. P. 3(b). For the reasons given below,

we affirm.

Appeal No. 03-51445

The district court dismissed Soliz’s claims against defendants

Troy C. Bennett and Joh n Jasuta in their official capacities,

finding that they were entitled to Eleventh Amendment immunity.

The district court also found that Bennett and Jasuta were entitled

to qualified immunity as to all claims against them in their

individual capacities. Although Soliz has challenged the district

c ourt’s dismissal on particular grounds, he has not briefed the

issues of Eleventh Amendment or qualified immunity.

Pro se briefs are afforde d liberal construction, Haines v.

Kerner

, 404 U.S. 519, 521 (1972), but to preserve arguments on

appeal, even pro se litigants must brief them. Yohey v. Collins

,

985 F.2d 222, 224-25 (5th Cir. 1993). Arguments not adequately

addressed in the body of the brief are deemed abandoned on appeal.

Id. at 225. Although the district court found some of the claims

against the defendants time-barred, the district court’s3

unchallenged dismissal of Soliz’s claims against Bennett and Jasuta

on grounds of Eleventh Amendment and qualified im munity is

sufficient to dispose of all of Soliz’s claims against them. See

American Eagle Airlines, Inc. v. Air Line Pilots Ass’n, Int’l

, 343

F.3d 401, 411 n.6 (5th Cir. 2003).

Soliz’s assertion that the district court erred in allowing

the defendants to file a motion to dismiss or for summary judgment

out of time also fails. Federal Rule of Civil Procedure 6(b) gives

a district court broad discretion to expand filing deadlines.

Hetzel v. Bethlehem Steel Corp.

, 50 F.3d 360, 367 (5th Cir. 1995).

Rule 6(b) gives discretion to a district court to allow such an

enlargement at any time a motion is made after the expiration of a

specified time period if the failure to act resulted from excusable

neglect. F E D

. R. C IV

. P. 6(b). Here, the district court exercised

its discretion by granting the defendants leave to file a

dispositive motion out of time based on their assertions that (1)

the case had been neglected by a previous attorney who had been

fired and (2) their motion raised important jurisdictional issues.

We cannot say that the district court’s decision to grant the

defendants leave to file a dispositive motion out of time under

these circumstances constituted an abuse of discretion. S ee Cozzo

v. Tangipahoa Parish Council--President Government , 279 F.3d 273,

280 (5th Cir. 2002).

Soliz next contends that the district court erred in failing

to consider his response and amended response t o the defendants’4

motion to dismiss or for summary judgment. Soliz failed to file a

response to this motion by the court’s deadline. As previously

indicated, F ED

. R. C IV

. P. 6 (b) allows a district court broad

discretion to expand filing deadlines. H etzel

, 50 F.3d at 367.

Here, aft er reviewing Soliz’s untimely pleadings, the district

court indicated that the pleadings would not have caused it to

alter its judgment. As the district court considered Soliz’s

untimely pleadings and exercised its discretion in not expanding

the time for filing, Soliz’s argument lacks merit. He has failed

to meet his burden of proving the existence of a genuine issue of

material fact. Accordingly, the judgment of the district court in

appeal No. 03-51445 is

AFFIRMED.

Appeal No. 04-41135

The district court dismissed Soliz’ s § 1983 action against

defendants Patrick Flanigan and Patricia Norton pursuant to 28

U.S.C. §§ 1915(e), 1915A and 42 U.S.C. § 1997e(c) for failure to

state a claim on which relief could be granted. The court reasoned

that Soliz’s claims were barred by the applicable Texas, two-year

statute of limitations: Soliz had become aware of the claims on

May 23, 2000, but did not file his § 1983 complaint until July 18,

2003.

The district court’s assessment of the timeliness of Soliz’s

complaint against these defendants is correct. In the context of

§ 1983, a federal court “borrows” a statute of limitations from the5

forum state’s general personal-injury limitations provision.

Jacobsen v. Osborne

, 133 F.3d 315, 319 (5 th Cir. 1998); O wens v.

Okure , 488 U.S. 235, 249-50 (1989). In Texas, that period is two

years. H itt v. Connell

, 301 F.3d 240, 246 (5th Cir. 2002). Soliz

acknowledges that he learn ed that the Texas Court of Criminal

Appeals had denied his state habeas application on May 23, 2000. As

Soliz became aware that his habeas application had been denied on

that date, and the denial was the injur y that he alleged, his

causes of action accrued at that time. S ee Harris v. Hegmann

, 198

F.3d 153, 157 (5th Cir. 1999). Thus, Soliz had until May 23, 2002,

to file his § 1983 action, yet did not do so until July 18, 2003.

The district court correctly ruled that Soliz’s complaint was

time-barred unless the statute of limitations is equitably tolled.

As the Texas statute of limitations is borrowed in § 1983

cases, we also look to Texas’s equitable tolling principles.

Rotella v. Pederson

, 144 F.3d 892, 894 (5th Cir. 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. H olmes v. Texas A&M Univ.

, 145 F.3d 681, 684-85 (5th

Cir. 1998). As Soliz has asserted no viable grounds on which the

statute of limitations could be tolled, the district court did

correctly dismiss his suit against defendants Flanigan and Norton

as time-barred. See id.

Soliz also contends that the district court erred by denying

him leave to amend his § 1983 complaint to add more defendants.6

Under Rule 15(a) of the Federal Rules of Civil Procedure, only with

leave of court or by written consent of the adverse party may a

party amend his pleadings after a responsive pleading has been

served. Rule 15(a) also instructs the court to grant leave to

amend freely. F E D

. R. C IV

. P. 15(a). We review a district court’s

denial of leave to amend a pleading for abuse of discretion.

United States v. Riascos

, 76 F.3d 93, 94 (5th Cir. 1996). “A

district court acts within its discretion when dismissing a motion

to amend that is frivolous or futile.” M artin’s Herend Imports,

Inc. v. Diamond & Gem Trading United States of America Co. , 195

F.3d 765, 771 (5th Cir. 1999).

Soliz’s claim s against the putative defendants, like his

claims against the initial defendants, are based on the assertion

t hat, by failing to provide him with notice of the state habeas

corpus proceedings, the putative defendants deprived him of his

constitutional rights. Also as with the claims in his initial

complaint, Soliz became aware o f the basis for his § 1983 action

more than two years before he filed his suit. As the amendments he

sought to file were futile, the district court did not abuse its

discretion by denying the motion to amend. See id. at 771.

Soliz also appealed the district court’s denial of his request

for the appointment of counsel. In his brief, Soliz merely notes

that the district court denied his request for the appointment of

counsel. As Soliz has failed to brief this issue, it is deemed

abandoned. See Yohey , 985 F.2d at 224-25.7

Accordingly, the judgment of the district court in appeal

No. 04-41135 is

AFFIRMED.