UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-20315

(Summary Calendar) _________________

DAN HANER,

Plaintiff - Appellant,

versus

SERGEANT KAUP; TOMMY THOMAS, Sheriff; HARRIS COUNTY, TEXAS,

Defendants - Appellees.

Appeal from the United States District Court For the Southern District of Texas (H-97-CV-165)

February 3, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Dan Haner, Texas prisoner # 704002, appeals from the district

court’s dismissal of his

civil rights action as

frivolous. The district court did not abuse its discretion in

dismissing his complaint on statute of limitations grounds. See

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Moore v. McDonald,

(5th Cir. 1994).

Haner argues for the first time on appeal that Sergeant Kaup

continually brandished a knife in the cell block, constituting a

continuing tort and that his cause of action did not accrue until

the date of the last action on April 16, 1995. In the alternative,

Haner argues that his cause of action did not accrue until his last

informal attempt to resolve the problem was rejected. Haner has

not shown plain error with respect to his belated new factual

allegations. Robertson v. Plano City of Tex.,

(5th

Cir. 1995). Gabel v. Lynaugh,

(5th Cir. 1988).

AFFIRMED.

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