                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   November 10, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-41559
                                      Summary Calendar



       ROJELIO GALINDO,

                                                           Plaintiff-Appellant,

                                             versus

       UNITED STATES DEPARTMENT OF JUSTICE; SUZANNE HASTINGS,

                                                           Defendants- Appellees.


                     Appeal from the United States District Court
                           for the Eastern District of Texas
                               (USDC No. 5:04-CV-62)
           _________________________________________________________


Before REAVLEY, JOLLY and OWEN, Circuit Judges.

PER CURIAM:*

       Federal prisoner Galindo appeals the dismissal of his Federal Tort Claims Act

(FTCA) lawsuit on the grounds that he was entitled to equitable tolling of the Act’s

statute of limitations at 28 U.S.C. § 2401(b). Reviewing the record for abuse of



       *
        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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
discretion, we affirm for the following reasons:

       1.     We have recognized that equitable tolling is available “in limited

              circumstances to prevent a plaintiff from unjustly losing a claim vigorously

              pursued.” Perez v. United States, 167 F.3d 913, 919 (5th Cir. 1999). A

              plaintiff who does not act diligently in pursuing his or her claim cannot rely

              on theories of equity to save that claim. Wilson v. Sec’y of Dept. of

              Veterans Affairs, 65 F.3d 402, 404-405 (5th Cir. 1995).

       2.     Galindo’s sole argument in favor of equitable tolling is that he and his

              attorneys were unsuccessful in attempts to contact one another after his

              transfer from a Texas facility to a New Mexico facility and he was thus

              unable to file a FTCA lawsuit within six months after denial of his

              administrative claim.

       3.     Uncontraverted evidence submitted by the Government shows that Galindo

              was not transferred to the New Mexico facility until after the six-month

              limitations period had expired. Nothing in the relevant federal or facility

              regulations prevented Galindo from communicating with his attorneys from

              either facility by correspondence, visitation, or telephone. There is no

              evidence in the record, and Galindo cites to none, indicating that Galindo

              was subjected to any special restrictions that would have hampered his

              ability to reach his attorneys. Further, Galindo was, by his own admission,

              aware of the limitations period. He could have, but did not, file a pro se

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            complaint to preserve his claims.

     4.     Galindo has not shown that he exercised such due diligence in pursuing

            judicial remedies as to be entitled to equitable relief from limitations. The

            district court did not abuse its discretion in finding that equitable tolling did

            not apply and dismissing Galindo’s FTCA claim.

AFFIRMED.




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