                             No. 99-50387
                                  -1-

               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                            No. 99-50387
                        Conference Calendar


BRUCE W. HOUSER,

                                            Plaintiff-Appellant,

versus

BRUCE ARMSTRONG; RALPH
CHRISTIANSEN; KEVIN CLARK;
MICHAEL MCILVANNA; ANTHONY
PATRICK; JESSIE SHUK,

                                            Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                       USDC No. W-98-CV-239
                       --------------------
                          April 11, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

     Bruce W. Houser, Texas prisoner # 460890, argues that the

district court erred in granting the defendants’ motion to

dismiss his 42 U.S.C. § 1983 complaint as time-barred.     Houser

argues that the case should be remanded to permit him to amend

his complaint to allege a claim that he was denied access to the

courts.

     Houser has not addressed on appeal his contention that the

statute of limitations period was tolled by his pending grievance

     *
        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that this opinion should not be published and is not precedent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.
                            No. 99-50387
                                 -2-

proceedings.   Thus, Houser has abandoned that claim.    See Yohey

v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

     Houser’s argument made for the first time on appeal that he

was precluded from timely filing his petition because prison

officials had confiscated his legal materials in retaliation for

his filing complaints against them would require the resolution

of factual issues that were not presented to the district court.

Therefore, this issue is not subject to review.     See Diaz v.

Collins, 114 F.3d 69, 71 n.5 (5th Cir. 1997).

      Houser cannot demonstrate any error by the district court

relating to his right to amend his complaint because he did not

seek to file an amendment in the district court.    Insofar as

Houser is attempting to raise a denial-of-access-to-the-court

claim for the first time on appeal, such claim is not subject to

review because it would involve the resolution of factual issues.

See Diaz, 114 F.3d at 71 n.5.

     Houser has submitted with his brief documents to support his

denial-of-access-to-the-court claim which were not presented to

the district court.    This court will generally not consider new

evidence on appeal.    See United States v. Flores, 887 F.2d 543,

546 (5th Cir. 1989).

     Houser has not demonstrated that the district court erred in

dismissing his complaint for failure to state a claim.

     Houser has requested the appointment of counsel.    Houser has

not demonstrated that this case presents "exceptional

circumstances" warranting the appointment of counsel.     Ulmer v.

Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).     Houser’s motion
                          No. 99-50387
                               -3-

for appointment of counsel is DENIED.

     This appeal is frivolous; it is DISMISSED.   5th Cir. R.

42.2.
