No. 99-20862 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-20862 Conference Calendar

JOHN D. DAVENPORT,

Plaintiff-Appellant,

versus

MAURICE NETHERY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-99-CV-386 -------------------- April 12, 2000

Before WIENER, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:*

John D. Davenport, Texas prisoner # 635633, appeals the

district court’s dismissal of his

lawsuit for

failure to pay the required filing fee by the date set by the

magistrate judge or, alternatively, as time-barred. The record

indicates that Davenport paid the required filing fee by the July

15, 1999, deadline. Nevertheless, the district court’s dismissal

may be affirmed on the alternative ground that the lawsuit, filed

in February 1999, is barred by the applicable two-year statute of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 99-20862 -2-

limitations. See Sojourner T. v. Edwards,

(5th

Cir. 1992); see also Gonzales v. Wyatt,

(5th

Cir. 1998);

(West

1986).

Davenport concedes that his cause of action accrued by no

later than August 7, 1995, but argues that the limitations period

was equitably tolled during the pendency of his state-court

lawsuit, which he asserts prevented him from filing his § 1983

lawsuit earlier. He contends that the state-court suit was not

dismissed until December 1997, rendering his § 1983 lawsuit

timely. Although Texas’ equitable tolling principles apply to

§ 1983 lawsuits, Texas permits the tolling of a statute of

limitations only where a plaintiff’s legal remedies are precluded

by the pendency of other legal proceedings. See Holmes v. Texas

A&M Univ.,

(5th 1998). The pendency of

Davenport’s state-court lawsuit does not merit equitable tolling

since it was a remedy which he need not have pursued. Cf.

.

Davenport’s appeal is without arguable merit and is thus

frivolous. See Howard v. King,

(5th Cir.

1983). Accordingly, it is DISMISSED. 5TH CIR. R. 42.2

APPEAL DISMISSED.