     Case: 15-10374      Document: 00513704064         Page: 1    Date Filed: 10/04/2016




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

                                    No. 15-10374                               FILED
                                  Summary Calendar                       October 4, 2016
                                                                          Lyle W. Cayce
                                                                               Clerk


ELVIS DEAN ROBERTS,

                                                 Plaintiff–Appellant,

versus

TOMMY L. NORWOOD; JOSEPH EASTRIDGE; MARY J. ROBERTSON,

                                                 Defendants–Appellees.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:12-CV-211




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Elvis Roberts, Texas prisoner # 1289838, filed a civil rights complaint



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-10374      Document: 00513704064        Page: 2    Date Filed: 10/04/2016


                                    No. 15-10374

asserting that four prison officials 1 had acted with deliberate indifference to
his serious medical needs by discontinuing his medical footwear. The district
court determined that the complaint was time-barred and dismissed it as frivo-
lous under 28 U.S.C. § 1915(e)(2)(B)(i).

      Roberts contends that the district court erred in failing to appoint coun-
sel, and he asserts that counsel should be appointed to represent him on appeal
and to apply for or oppose a certiorari petition. Roberts has not shown that the
district court abused its discretion or that exceptional circumstances are pres-
ent for appointment of counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir.
1987); Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). The motion for
appointment of counsel is DENIED.

      Roberts complains that he has been or will be denied access to the courts
because of the denial of his motions for appointment of counsel, the unavaila-
bility of a substitute inmate legal assistant, and the inadequacy of the prison
law library. Roberts does not assert, and the record does not reflect, that he
has been precluded from filing any pleadings or other documents with the court
because he was not appointed counsel or because the library is inadequate. See
Lewis v. Casey, 518 U.S. 343, 349 (1996).

      Roberts asserts that the magistrate judge (“MJ”) exceeded his authority
and was unfairly biased. Roberts has not shown that the MJ exceeded the
authority delegated to him by the district court under 28 U.S.C. § 636(b). Nor
has he shown that the MJ was unfairly biased. See Liteky v. United States,
510 U.S. 540, 555 (1994) (holding that judicial rulings will support a claim of
bias only if they reveal an opinion based on an extrajudicial source or


      1Defendant Jerry Revell was voluntarily dismissed. The remaining defendants were
Tommy Norwood, medical administrator, Allred Unit; Joseph Eastridge, nurse practitioner;
and Mary Robertson, laundry manager.


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                                 No. 15-10374

demonstrate such a high degree of antagonism as to make fair judgment
impossible).

      With respect to the ruling that the action is time-barred, Roberts claims
that the district court erred in applying the two-year limitations period applic-
able to tort claims in Texas.     He posits that the four-year period under
28 U.S.C. § 1658 applies. That contention is without merit. See King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 758–60 and n.3 (5th Cir. 2015). Al-
though Roberts maintains that the limitations period was tolled, he did not
present that theory in the district court, so it is waived. See Leverette v. Lou-
isville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).

      Roberts therefore has not shown that the district court abused its discre-
tion in dismissing the complaint as frivolous, see Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999), so the appeal is likewise DISMISSED as frivolous, see 5TH
CIR. R. 42.2. Roberts is WARNED that this court’s dismissal of his appeal and
the district court’s dismissal of his complaint as frivolous count as strikes
under 28 U.S.C. § 1915(g) and that, if he accumulates three strikes, he may
not proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated unless he is under imminent danger of serious physical injury.
See Coleman v. Tollefson, 135 S. Ct. 1759, 1763–64 (2015); Adepegba v. Ham-
mons, 103 F.3d 383, 385–87 (5th Cir. 1996).




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