UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

___________________________

No. 99-50185 Summary Calendar ___________________________

KENT ANTHONY KRUEGER,

Plaintiff-Appellant,

VERSUS

JODY HERRY; RICK SANCHEZ; KERMIT VETTER; FRANK PEDREZ; JACK BREMER, Sheriff, in his official and personal capacity; BRIAN JOHN, Comal County Jail Administrator, in his official and personal capacity; BILL COLLINS, in his personal and supervisory capacity as an official of Comal County,

Defendants-Appellees. ___________________________________________________

Appeal from the United States District Court for the Western District of Texas (SA-95-CV-129) ___________________________________________________ February 28, 2000

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:*

Kent Anthony Krueger appeals the district court’s grant of

summary judgment in favor of the defendants in his

civil rights action. On appeal, Krueger argues that the

district court: 1. abused its discretion in denying his motion to

file a second amended complaint; and 2. erred in holding that he

was estopped from asserting that the alleged use of force against

him occurred on December 30, 1993, and granting summary judgment on

that basis.

After the government filed its second motion for summary

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. judgment, Krueger sought to file a second amended complaint to

allege, among other things, that the alleged excessive force

incident occurred on December 30, 1993, rather than January 7,

1994. Krueger contends that the district court erred in denying

his motion.

Krueger also argues that the district court erred in finding

that he was estopped from asserting December 30 as the incident

date and granting summary judgment for the government on that

basis. Krueger does not challenge the nature of the record

regarding the motion for summary judgment. In his original and

first amended complaints, Krueger alleged January 7 as the date of

the alleged incident. In his May 1998 deposition, he contended

that there were two incidents involving the same defendants -- one

in December 1993 and one in January 1994 -- but that he was only

suing for the January 7 incident. Thus, for more than three years,

Krueger has asserted January 7 as the incident date. It was only

after the defendants filed their second motion for summary judgment

that Krueger sought to change the date.

Given the length of time the defendants have relied on

Krueger’s date allegation and Krueger’s insistence at his

deposition that the suit involved only the alleged incident on

January 7, the district court committed no error. More

particularly, we find no abuse of discretion by the district court

either in declining to allow Krueger to amend his complaint or in

concluding that Krueger was estopped from asserting a new accident

date. Thus, we find no error in the district court’s grant of

summary judgment in favor of the defendants.

2 We AFFIRM the district court’s denial of the plaintiff’s

motion to file a second amended complaint and the district court’s

grant of summary judgment in favor of the defendants.

3