                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2006

                                                         Charles R. Fulbruge III
                                                                 Clerk
                            No. 05-41846
                        Conference Calendar



MARSHALL WELLS,

                                    Plaintiff-Appellant,

versus

JACKIE EDWARDS, Warden of Ramsey III; UNKNOWN REGIONAL DIRECTORS
at DARRINGTON UNIT 59; PRIGE JACK, Grievance Coordinator of
Ramsey III Unit; SUSAN RIVAS; CAROLYN C. FIELDS,
Supervisor of the Mailroom at Ramsey III Unit; REGINA
HIGGINS, Clerk of Ramsey III Mailroom; ANTON POWELL, Clerk
of Ramsey III Mailroom; SHEKI MURPHY, Clerk of Ramsey III
Mailroom,

                                    Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                      USDC No. 3:05-CV-558
                      --------------------

Before STEWART, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Marshall Wells, Texas prisoner # 314821, appeals from the

district court’s dismissal of his 42 U.S.C. § 1983 complaint as

time-barred pursuant to 28 U.S.C. § 1915A(b)(1).    Wells concedes

that he previously filed the same complaint against the same

defendants and that it was voluntarily dismissed pursuant to his


     *
       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this opinion should not be published and is not precedent except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. 05-41846
                                 -2-

“Notice of Dismissal” filed on August 19, 2003.   Wells also

concedes that his cause of action arose when he received the

final response to his Step Two Grievance in 1999.   See Jackson v.

Johnson, 950 F.2d 263, 265 (5th Cir. 1992).   The applicable

statute of limitations is two years.   See Hitt v. Connell, 301

F.3d 240, 246 (5th Cir. 2002).   Wells’s voluntary dismissal of

that complaint left him in the same position as if the lawsuit

had never been filed.   Lambert v. United States, 44 F.3d 296, 298

(5th Cir. 1995).   Equitable tolling is not warranted in this case

because Wells failed to act diligently to preserve his claims.

See id. at 299 & 299 n.1.   Wells’s complaint filed in September

2005 was therefore untimely.

     AFFIRMED.
