Holmes v. Dubois

USCA1 Opinion

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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        No. 96-1979



                                    JUSTIN HOLMES,



                                Plaintiff, Appellant,



                                          v.



                                LARRY DUBOIS, ET AL.,



                                Defendants, Appellees.



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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Reginald C. Lindsay, U.S. District Judge]
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                                        Before



                        Cyr, Stahl, and Lynch, Circuit Judges.
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            Justin Holmes on brief pro se.
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            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and
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        Charles   M.  Wyzanski,  Senior   Litigation  Counsel,  Department  of
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        Correction, on motion for summary disposition for appellees.





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                                    MARCH 24, 1997

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                 Per  Curiam.    As   the  defendants  now  concede,  the
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            plaintiff's action is not time-barred.  The complaint, having



            been  submitted  along  with  the  in  forma  pauperis  (IFP)



            application on August 30, 1995, within the three year statute



            of  limitations period,  was  thereby timely.    See Dean  v.
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            Veterans Admin. Regional Office, 943 F.2d 667, 671  (6th Cir.
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            1991)  (holding that,  at  least in  the  case where  an  IFP



            application is subsequently  granted, a  complaint is  deemed



            timely  filed,  for  statute  of  limitations   purposes,  if



            presented  to   the  district   court  along  with   the  IFP



            application  within  the  statute  of   limitations  period),



            vacated on  other grounds,  503 U.S.  902 (1992);  Gilardi v.
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            Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987) (same); Martin
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            v. Demma,  831 F.2d 69, 71  (5th Cir. 1987) (same);  see also
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            Jarrett v.  US Sprint Communications  Co., 22  F.3d 256,  259
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            (10th  Cir.) (same)  (dicta), cert.  denied, 115  S.  Ct. 368
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            (1994).



                 They request  that we  affirm nonetheless on  the ground



            that  the complaint is meritless.  We decline to consider the



            merits,  leaving that  review to  the  district court  in the



            first instance, both because  it is the norm and  because the



            precise  scope  of the  complaint is  unclear.   In  an order



            (apart  from the  judgment  on the  pleadings  on statute  of



            limitations  grounds)  not  addressed  by  either  party, the



            district  court, with  the  agreement of  the plaintiff,  see
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            documents  24  &  25,  dismissed  the  complaint  as  against



            defendants  DuBois,  Duval,  Mahtesian,  and  Metrano.    The



            dismissal was  recited to  be with  prejudice and,  while the



            subsequent  judgment referenced  both the dismissal  order of



            June 26, 1996  and the grant of the judgment on the pleadings



            of  July 23,  1996, plaintiff's  notice of  appeal referenced



            only the July 23  ruling.  Yet,  insofar as the parties  have



            addressed  the underlying  merits  of the  complaint on  this



            appeal,  the  arguments  appear   to  presume  that,  if  the



            complaint is  not time-barred,  the alleged liability  of all



            original defendants remains  at issue.   We leave  it to  the



            district  court,  upon  remand,  to  resolve,  in  the  first



            instance, the current scope of the complaint.



                 Vacated and remanded.  No costs.
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