     Case: 13-40659   Document: 00512550624   Page: 1   Date Filed: 03/05/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                              No. 13-40659                          March 5, 2014
                            Summary Calendar
                                                                   Lyle W. Cayce
                                                                        Clerk
STEVEN REYNALDO PEREZ,

                                        Plaintiff-Appellant

v.

UNITED STATES OF AMERICA; UNITED STATES MARSHAL SERVICE,
Southern District of Texas; UNITED STATES PROBATION OFFICE,
Southern District of Texas; UNKNOWN NAMED OFFICERS OF THE
UNITED STATES DISTRICT COURT, Southern District of Texas;
UNKNOWN NAMED OFFICERS OF THE UNITED STATES MARSHAL
SERVICE, Southern District of Texas; UNKNOWN NAMED OFFICERS OF
THE UNITED STATES PROBATION OFFICE, Southern District of Texas;
UNKNOWN NAMED INVESTIGATIVE OFFICERS OF THE UNITED
STATES GOVERNMENT; UNKNOWN NAMED LAW ENFORCEMENT
OFFICERS OF THE UNITED STATES GOVERNMENT; ROGER PEREZ,
United States Probation Officer,

                                        Defendants-Appellees


                Appeal from the United States District Court
                     for the Southern District of Texas
                           USDC No. 2:12-CV-376
     Case: 13-40659      Document: 00512550624         Page: 2    Date Filed: 03/05/2014


                                      No. 13-40659

Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
       Steven Reynaldo Perez, Texas prisoner # 1514617, filed a civil action
raising claims arising under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), and claims arising under the Federal
Tort Claims Act (FTCA). Perez’s claims stemmed from his detention in state
jail while awaiting trial on charges of murder and possession of a firearm by a
felon. In his complaint, Perez asserted that he could have obtained pretrial
release if a detainer, stemming from a separate proceeding in federal court,
had not been lodged against him. He argued that the defendants failed to
advise him that the district court in the federal proceeding had set bond and
falsely advised that no bond had been set.              But for these actions, Perez
maintained that he would have posted bond and obtained pretrial release from
state jail. The district court dismissed Perez’s Bivens claims as barred by Heck
v. Humphrey, 512 U.S. 477, 486-87 (1994), and as barred by the statute of
limitations. Pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), the court dismissed
Perez’s claims arising under the FTCA for failure to state a claim and as time
barred. Following the dismissal, Perez filed a motion to amend the district
court’s factual findings and legal conclusions and a motion for a new trial. The
district court denied both motions. Perez appealed.
       Regarding the district court’s judgment on the statute of limitations
issue, we find no error with the district court’s conclusion that Perez’s suit was
filed long after the limitations period ended. Furthermore, the district court




       * 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.



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                                  No. 13-40659

did not abuse its discretion in failing to apply equitable tolling.        Perez’s
contentions otherwise are unpersuasive.
      In light of the foregoing, the district court did not abuse its discretion in
denying Perez’s motions for a new trial or his motion to amend. See Cates v.
Creamer, 431 F.3d 456, 460 (5th Cir. 2005). Because the district court correctly
determined that Perez’s Bivens and FTCA claims were barred by the applicable
statutes of limitations, we do not address Perez’s arguments concerning the
district court’s alternative reasons for dismissing his claims.
      Finally, Perez argues that the district court abused its discretion in
failing to rule on his motion for the appointment of counsel and in thus
implicitly denying the motion.      Because Perez did not show exceptional
circumstances warranting the appointment of counsel, he has not shown that
the district court abused its discretion in implicitly denying his motion. See
Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      The judgment of the district court is AFFIRMED. Our affirmance and
the district court’s dismissal count as one strike under § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996).             Perez has previously
accumulated one strike. See Perez v. United States, No. 2:10-cv-00246; Perez
v. United States, 481 F. App’x 203 (5th Cir. 2012), cert. denied, 133 S. Ct. 953
(2013). Perez is WARNED that if he accumulates three strikes, he will not be
allowed to proceed in forma pauperis in any civil action or appeal, filed while
he is incarcerated or detained in any facility, unless he “is under imminent
danger of serious physical injury.” See § 1915(g).




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