UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 97-7094

LEE EDWARD ELLERBEE,

Plaintiff - Appellant,

versus

M. J. MCDADE, Superintendent; PEGGY JONES, Head Nurse, Medical Staff; OFFICER KORNGAY; FRANKLIN FREEMAN,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern Dis- trict of North Carolina, at Raleigh. Malcolm J. Howard, District Judge. (CA-97-11-5-2-H)

Submitted: November 6, 1997 Decided: November 25, 1997

Before WIDENER and LUTTIG, Circuit Judges, and BUTZNER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

Lee Edward Ellerbee, Appellant Pro Se.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Appellant appeals the district court's order dismissing his

(1994) action as frivolous. We have reviewed the

record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. Ellerbee v. McDade, No. CA-97-11-5-2-H (E.D. Va. July 28, 1997). Even if Appellant's prior 1995 action, which raised the same

allegations, tolled the limitations period, the complaint in this

appeal was filed outside the applicable three-year statute of limi- tations. We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

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