                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                December 16, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 04-10555
                         Conference Calendar



ERIC GANT,

                                     Plaintiff-Appellant,

versus

JOSEPH M. GAROFANO,

                                     Defendant-Appellee.

                         --------------------
             Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 4:04-CV-275-A
                         --------------------

Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.

PER CURIAM:*

     Eric Gant appeals the district court’s 28 U.S.C.

§ 1915(e)(2) dismissal of his 42 U.S.C. § 1983 lawsuit as

time-barred.    Gant does not specifically assert that his suit was

in fact timely but argues instead that the limitations period

should have been equitably tolled by the pendency of his prior,

unsuccessful state lawsuit.    He also argues that the limitations

period should have been equitably tolled by the pendency of 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this opinion should not be published and is not precedent except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. 04-10555
                                -2-

prior federal lawsuit, which asserted the same claims as the

instant suit and which was dismissed for lack of proper venue.

     Because the Texas statute of limitations is borrowed in

42 U.S.C. § 1983 cases, this court also looks to Texas’ equitable

tolling principles.   See Rotella v. Pederson, 144 F.3d 892,

894 (5th 1998).   Texas permits the tolling of a statute of

limitations when a plaintiff’s legal remedies are precluded by

the pendency of other legal proceedings.   See Holmes v. Texas A&M

Univ., 145 F.3d 681, 684-85 (5th Cir. 1998).   However, the

pendency of Gant’s state lawsuit does not merit equitable tolling

since it sought a remedy that he need not have pursued.   Cf. id.

at 685.

     The prior federal lawsuit similarly does not save the

instant suit.   Although Gant argues that the earlier suit should

have been transferred rather than dismissed, enabling him to

avoid the limitations problem, his remedy was to oppose the

dismissal by moving for a transfer to the court of proper venue

and/or by appealing the dismissal order, neither of which has he

shown he did.   To the contrary, Gant’s own submissions show that

he did not seek a transfer and that the district court determined

that dismissal was appropriate because the claims Gant sought to

raise were previously adjudicated on the merits against him in

state court.
                           No. 04-10555
                                -3-

     Gant has not demonstrated any justification under Texas law

for equitable tolling.   The district court’s judgment is

AFFIRMED.
