(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
______________
NOS. 94-50399, 94-50402,
94-50567 and 94-50763
Summary Calendar
______________
JASON LARISCEY, Plaintiff-Appellant,
versus
WENDELL SMITH, ET AL, Defendants-Appellees.
_________________________________________________________________
Appeals from the United States District Court for the
Western District of Texas
(A 93 C 567 & A 88 CA 429)
_________________________________________________________________
( August 18, 1995 )
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM*:
This is a consolidated appeal assailing the decisions of the
district court that denied a post-judgment motion to reinstate one
lawsuit, granted a summary judgment to Defendants-Appellees, denied
appointed counsel and requested sanction in a subsequent suit
involving the same subject matter. Finding no error, we affirm.
BACKGROUND
Proceeding pro se, Jason Lariscey ("Lariscey"), formerly an
inmate at F.C.I. Bastrop and now a Georgia-state prisoner, filed

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1 The RICO suit was originally filed in the U.S. District
Court for the District of Columbia. That court later transferred
the suit to the Western District of Texas.
2 In a related case (the Claims Court suit), the United
States Claims Court granted summary judgment for the Government
in Lariscey's suit claiming damages for the alleged taking of his
invention and for the alleged breach of an implied contract. See
Lariscey v. United States, 20 Cl. Ct. 385, 387, 392 (Cl. Ct.
1990), aff'd en banc, 981 F.2d 1244 (Fed. Cir. 1992), cert.
denied, ___U.S.___, 113 S.Ct. 2997, 125 L.Ed.2d 691 (1993).
2
suit on December 17, 1987 against the Department of the Army and
several federal employees affiliated with F.C.I. Bastrop.1 He
alleged that Defendants-Appellees' civil RICO enterprise deprived
him of his invention, a jig to cut kevlar material, and its
revenues. On January 14, 1991, the district court adopted the
magistrate judge's recommendation to grant Defendants-Appellees'
motion to dismiss, and alternatively, premised dismissal on
Lariscey's failure to prosecute the case.
Lariscey also filed a separate civil rights and RICO suit
(second suit) on September 9, 1993 in the U.S. District Court for
the Southern District of Georgia, which was later transferred to
the Western District of Texas. This suit named as defendants
several federal agencies and federal employees, alleging
deprivation of property rights in the kevlar-cutting device.2 In
that case, Lariscey moved for appointment of counsel and for a
court-ordered stipulation as to perjury. The magistrate judge
denied the motions, and Lariscey filed his appeal with the district
court, which was denied.
Defendants-Appellees moved for dismissal, or in the
alternative, summary judgment, asserting dismissal based on res

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3 The magistrate judge analyzed the claims under 42 U.S.C.
§§ 1983, 1985, 1986. However, the defendants are federal actors,
not state actors. Therefore, Lariscey's claims were brought
pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
4 The Court of Claims found that Lariscey did not have a
property interest in the invention under the Fifth Amendment.
See Lariscey, 20 Cl. Ct. at 388-92.
3
judicata, collateral estoppel, and statute of limitations. Along
with his response to this motion, Lariscey moved to reopen his
first RICO suit, dismissed in 1991. The district court denied the
motion.
The magistrate judge recommended the grant of the Defendants-
Appellees' motion to dismiss and the dismissal of the case,
concluding that the statute of limitations had run on Lariscey's
civil rights claims3 and that res judicata from the judgment in the
old RICO suit precluded Lariscey's RICO claim. After Lariscey
filed objections to the report, the district court reviewed the
record de novo, adopted the magistrate judge's report, granted the
Defendants-Appellees' motion and dismissed the case.
REINSTATEMENT OF RICO SUIT
Lariscey contends that the district court erred in dismissing
his first RICO suit for failure to prosecute without giving him
notice and opportunity to respond and that the court erred by
failing to provide him with a copy of his Spears hearing
transcript. He argues that compensation is owed him due to the
taking of his property, his invention.4 Because his motion to
reinstate was served after ten days from entry of the final
judgment, the motion is viewed as a motion brought pursuant to Fed.

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5 Lariscey amended his complaint to include state law
claims concerning the alleged theft of his invention. Neither
the magistrate judge nor the district court addressed this aspect
of Lariscey's complaint in dismissing or recommending dismissal
of Lariscey's suit. However, Lariscey does not make a state-law
argument on appeal. Therefore, any issue concerning the court's
handling of the matter is deemed abandoned on appeal. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
4
R. Civ. P. 60(b). See Ford v. Elsbury, 32 F.3d 931, 937 n.7 (5th
Cir. 1994). A district court's denial of such a motion is reviewed
for an abuse of discretion. Edward H. Bohlin Co., Inc. v. Banning
Co., Inc., 6 F.3d 350, 353 (5th Cir. 1993).
An appeal of the Rule 60(b) order does not raise for appeal
the underlying final judgment. See Aucoin v. K-Mart Apparel
Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991). Therefore, the
merits of the underlying judgment, which Lariscey argues on appeal,
are not properly before us. To the extent that Lariscey's argument
may be liberally construed as an argument contending that the court
abused its discretion in denying to reopen the suit because
Lariscey never received notice of the court's final judgment, this
argument has been conclusively decided against Lariscey's position.
See Latham v. Wells Fargo Bank, N.A., 987 F.2d 1199, 1204-05 (5th
Cir. 1993). Failure to receive notice of dismissal is an
insufficient basis under Rule 60(b). Id. Therefore, we find that
the district court did not abuse its discretion.
SUMMARY JUDGMENT
Lariscey contests the dismissal of his 1993 suit raising civil
rights and RICO claims.5 The district court adopted the magistrate
judge's report and granted the defendants' motion to dismiss. In

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5
determining the merits of the defendants' motion, the magistrate
judge looked beyond the pleadings by considering the preclusive
effect of Lariscey's first RICO suit. When a district court
dismisses a suit for failure to state a claim, but does not exclude
matters outside of the pleadings which were presented to the court,
the dismissal is treated as a grant of summary judgment. FED. R.
CIV. P. 12(b), 56. Therefore, our review is de novo. McKee v.
Brimmer, 39 F.3d 94, 96 (5th Cir. 1994).
The district court dismissed Lariscey's suit because the res
judicata precluded his RICO claim and because the statute of
limitations had run on his civil rights claims. We review the
propriety of district court's application of the doctrine of res
judicata and the statute of limitations.
Res Judicata
Application of res judicata is proper only if the
following four requirements are met: (1) the parties
must be identical in the two suits; (2) the prior
judgment must have been rendered by a court of competent
jurisdiction; (3) there must be a final judgment on the
merits; and (4) the same cause of action must be involved
in both cases.
Russell v. SunAmerica Secs., Inc., 962 F.2d 1169, 1172 (5th Cir.
1992). The first element, identical parties, does not require
strict identity as long as there is sufficient connection, or
"privity," between the earlier defendants and the defendants in
Lariscey's present suit. See id. at 1173. Excluding the private
actors who were dismissed from the suits at Lariscey's requests,
the defendants from both RICO suits were either the same persons or
agencies or employees of the federal government. Thus, there is

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6
sufficient privity for the parties to be identical. See Boone v.
Kurtz, 617 F.2d 435, 436 (5th Cir. 1980).
The prior judgment was determined by the same district court
judge entering judgment in the present case. In the prior RICO
suit, the district court adopted the magistrate judge's report and
dismissed the suit pursuant to the defendants' motion to dismiss
and, in the alternative, for failure to prosecute. A Rule 12(b)(6)
dismissal is a dismissal on the merits for purposes of res
judicata. Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394,
399 n.3, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). In both suits,
Lariscey contended that the named defendants conspired to deprive
him of his claimed property rights in the kevlar-cutting invention
and to retaliate against him for attempting to exercise those
rights.
As analyzed above, the district court correctly applied the
doctrine of res judicata to bar Lariscey's RICO claim. Lariscey
argues that this was an improper application because he was denied
a full and fair opportunity to litigate his RICO claim in the first
RICO suit. However, we find that the record of his first RICO suit
that was pending more than three years before dismissal negates his
claim of lack of opportunity to litigate. Lariscey argues that res
judicata is improper because he did not have notice or opportunity
to respond to the court's earlier Rule 12(b)(6) dismissal, but
Lariscey's failure to keep abreast of his litigation is irrelevant
to the application of res judicata. Thus, we find that the
district court did not err in granting summary judgment for the

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7
defendants on the RICO claim.
Additionally, a review of Lariscey's complaint indicates that his
Bivens claims are the underlying predicate acts of his RICO action.
To the extent that Lariscey's Bivens claims are not barred by res
judicata, these claims are considered in light of the applicable
statute of limitations. We look to state law to determine the
applicable limitations period for a Bivens action. Spina v. Aaron,
821 F.2d 1126, 1128-29 (5th Cir. 1987). The applicable limitations
period in Texas is two years. See Gartrell v. Gaylor, 981 F.2d
254, 256-57 (5th Cir. 1993).
Although state law governs the limitations period, federal law
governs when the cause of action arises or accrues. Id. at 257.
Under federal law, a cause of action accrues when the
plaintiff knows or has reason to know of the injury which
is the basis of the action. The statute of limitations
therefore begins to run when the plaintiff is in
possession of the "critical facts that he has been hurt
and who has inflicted the injury
. . . ."
Id. (citations omitted). Our review of Lariscey's allegations
indicates that he knew the critical facts no later than 1988. He
filed suit in September 1993. To the extent that Lariscey's Bivens
claims concern acts by Defendants-Appellees that occurred in the
litigation in the Claims Court, that litigation at the trial level
ended in May 11, 1990. See Lariscey, 20 Cl. Ct. at 385. Thus, we
find that the limitations period has run on Lariscey's Bivens
claims.
Statute of Limitations
Lariscey also argues that the district court erred in

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8
determining that the limitations period had run because it should
have been tolled. Lariscey asserts several reasons why limitations
should have been tolled. First, he contends his harm is continuing
because he is being denied his right to his invention, a right
which lasts 17 years. Federal law recognizes a similar tolling
exception, the continuing violation doctrine. See Hendrix v. City
of Yazoo City, Miss., 911 F.2d 1102, 1103 (5th Cir. 1990).
However, Lariscey's argument is premised upon his alleged property
right in the kevlar-cutting invention. The Claims Court determined
that Lariscey does not have such a right in the unpatented
invention. See Lariscey, 20 Cl. Ct. at 388-92. Thus, the
exception is inapplicable.
Second, Lariscey argues that Defendants-Appellees' acts
included misrepresentations and criminal acts, thus limitations
should be tolled. Even if Lariscey sufficiently raised this
argument below, his reasoning is circular and presumes as
justification for tolling the acts of Defendants-Appellees alleged
by Lariscey in his complaint. Therefore, his argument has no
merit.
Third, Lariscey argues that, at the time his action arose in
1987, Texas tolled limitations for incarcerated individuals. Even
if Lariscey raised this argument in the district court, it would be
unavailing because Texas eliminated this tolling provision
beginning in September 1987. See Burrell v. Newsome, 883 F.2d 416,
419 (5th Cir. 1989). Limitations began to run on September 1,
1987, for any claim which Lariscey may have had before that date.

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9
Fourth, Lariscey contends that limitations were tolled until
the Claims Court litigation ended. As legal support, he mistakenly
relies upon a Third Circuit case concerning a claim for malicious
prosecution. See Rose v. Bartle, 871 F.2d 331, 348 (3d Cir. 1989).
Under Texas law, such a tolling provision is unavailable unless the
earlier proceeding's outcome is a necessary prerequisite to the
filing of the suit in issue. See Martinez v. Hardy, 864 S.W.2d
767, 774 (Tex. App.-Hous. (14 Dist.) 1993). Lariscey does not
contend that the Claims Court determination that he does not have
a property interest in the unpatented, kevlar-cutting invention was
necessary to the bringing of his Bivens action. Instead, he
appears to argue that his allegations concerning the defendants'
violations of 18 U.S.C. §§ 1001 and 1621, criminal statutes
covering perjury and making a false statement, have been ongoing
and that the Claims Court decision is an example of these
continuing violations because that decision is in error. We find
that this meritless and confusing argument is insufficient to
preserve the unknown issue for appeal. See Yohey, 985 F.2d at 225.
Finally, Lariscey argues that the federal doctrine of
equitable tolling should apply to his suit because he has been
diligent in his effort to obtain evidence. The circumstances of
Lariscey's case, which includes the earlier dismissed RICO suit and
the Claims Court decision covering the same operative facts
underlying this case, negate any claim that Lariscey has been so
diligent as to invoke equitable tolling. See Lambert v. United
States, 44 F.3d 296, 298-99 (5th Cir. 1995). Moreover, a similar

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10
Texas tolling provision concerning the plaintiff's reasonable
diligence in discovering the right of action against a party who
has fraudulently concealed information in which that party had a
duty to disclose appears equally inapplicable to Lariscey. See
Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 352 n.1 (Tex. 1990).
Accordingly, we find that the district court did not err in
granting summary judgment for Defendants-Appellees on the basis of
res judicata and limitations.
APPOINTMENT OF COUNSEL
Lariscey argues that the district court erred in denying his
appeal, or request for reconsideration, of the magistrate judge's
orders denying appointment of counsel and denying Lariscey's
request for a court-ordered stipulation on perjury. In such a case
as Lariscey's, appointment of counsel is within the court's
discretion, and such a request should be granted when "the case
presents exceptional circumstances." Ulmer v. Chancellor, 691 F.2d
209, 212-13 (5th Cir. 1982).
In denying Lariscey's appeal, the district court noted that it
had reviewed the applicable record and law. In light of the
analysis covering the propriety of summary judgment, there was no
need for a trial, and the case was not complex -- Lariscey's claims
either were barred by the doctrine of res judicata or were stale by
the running of limitations. Thus, we find that the district court
did not abuse its discretion in denying appointed counsel.
As for Lariscey's request for court-ordered stipulation to
require the prosecution of anyone who knowingly made a false

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11
statement in the litigation of this case, we find no basis in law
authorizing such a court-ordered stipulation between the parties.
Thus, the district court did not err in denying such a frivolous
request.
LARISCEY'S REQUEST FOR SANCTIONS
Lariscey argues that the district court erred in denying his
request for sanctions against Defendants-Appellees. A denial of
sanctions, whether pursuant to FED. R. CIV. P. 11 or 28 U.S.C. §
1927, is reviewed for an abuse of discretion. See National Assoc.
of Gov't Employees v. National Fed'n of Fed. Employees, 844 F.2d
216, 222-23 (5th Cir. 1988). Lariscey sought large monetary awards
of attorney's fees as a sanction for Defendant-Appellees' alleged
improprieties. The record encompassing these four appeals reveals
that Lariscey has attempted to litigate the taking of his alleged
property three times, once in the Claims Court and twice in the
district court. Upon this record, we can find no abuse of
discretion in denying attorney's fees as a sanction.
Defendants-Appellees also request sanctions against Lariscey
to prevent further frivolous litigation. This is the first time
Lariscey has come before this Court, but we have noted the
voluminous record he has generated in the district court through
these cases, his filing of repetitive claims and his comments
regarding the district court's alleged bias. Although we deny
Defendants-Appellees' request for sanctions, we caution that
sanctions may be appropriate if Mr. Lariscey continues his
meritless pursuit of money from the kevlar-cutting device.

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12
AFFIRMED.

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