     Case: 11-50620     Document: 00511913553         Page: 1     Date Filed: 07/09/2012




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

                                                                            FILED
                                                                            July 9, 2012
                                     No. 11-50620
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JOB ANDRADE,

                                                  Plaintiff-Appellant

v.

ODESSA POLICE DEPARTMENT; MANUEL ANDRADE; CITY OF ODESSA;
ODESSA CITY MANAGER; MS. GOODMAN; GREGORY A. TRAVLAND;
JESSE DUARTE; DETECTIVE MAUREEN FLETCHER; T. WHITFIELD,
FREDDY NAYOLA; G. LANE; CECIL KEELY; ODESSA CHIEF OF POLICE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:10-CV-16


Before HIGGINBOTHAM, DAVIS and ELROD, Circuit Judges.
PER CURIAM:*
        Job Andrade, federal prisoner # 27828-180, appeals the district court’s
summary judgment dismissal of his 42 U.S.C. § 1983 complaint as time barred.
Davis filed the complaint after he was allegedly falsely arrested and falsely
imprisoned on three separate occasions. He argues that the district court’s
dismissal of his § 1983 complaint as time barred was erroneous because the

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-50620    Document: 00511913553      Page: 2    Date Filed: 07/09/2012

                                  No. 11-50620

district court applied the incorrect accrual date of his claims and because he is
entitled to equitable tolling of the limitations period.
      We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the records discloses “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a).
      Even if Andrade’s claims accrued on the date that he alleges, his claims
are still untimely absent equitable tolling. “Equitable tolling is a rare remedy
to be applied in unusual circumstances, not a cure-all for an entirely common
state of affairs.” Wallace v. Kato, 549 U.S. 394, 396 (2007). A person seeking the
benefit of equitable tolling “must show (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.”    Lawrence v. Florida, 549 U.S. 327, 336 (2007)
(assuming without deciding that the federal habeas limitations period may be
equitably tolled) (internal quotations marks and citation omitted). To the extent
that Andrade argues that his claims were equitably tolled pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994), while he pursued relief pursuant to 28 U.S.C.
§ 2255, he has abandoned this issue, see Hughes v. Johnson, 191 F.3d 607, 613
(5th Cir. 1999), due to his failure to adequately brief it, see United States v.
Green, 964 F.2d 365, 371 (5th Cir. 1992). In addition, Andrade’s claim that he
was entitled to equitable tolling because he was separated from his legal
materials and denied access to a law library during two prison transfers is
unavailing because these impediments were removed before the end of the
limitations period. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
Thus, Andrade has not made the required showing.
      Andrade also argues that the district court abused its discretion in denying
his motion to compel defendants’ discovery responses.          The district court
dismissed the complaint as time barred, and Andrade fails to explain how

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                                 No. 11-50620

discovery would have affected that determination. He therefore has failed to
establish that the district court abused its discretion by denying his discovery
requests. See Williamson v. United States Dep’t of Agriculture, 815 F.2d 368, 382
(5th Cir. 1987) (“[C]ontrol of discovery is committed to the sound discretion of
the trial court and its discovery rulings will be reversed only where they are
arbitrary or clearly unreasonable.”). Finally, Andrade has not shown exceptional
circumstances necessary for the appointment of counsel in a § 1983 case. See
Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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