USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1979

JUSTIN HOLMES,

Plaintiff, Appellant,

v.

LARRY DUBOIS, ET AL.,

Defendants, Appellees.

___________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

___________________

____________________

Before

Cyr, Stahl, and Lynch, Circuit Judges.

______________

____________________

Justin Holmes on brief pro se.

_____________
Nancy Ankers White,
____________________
Charles
M. Wyzanski,
______________________

Special
Senior

Assistant
Litigation

Attorney
Counsel,

General,
Department

Correction, on motion for summary disposition for appellees.

____________________

MARCH 24, 1997

____________________

Per Curiam.
___________

As

the

defendants

now

concede,

the

plaintiff's action is not time-barred.

been

submitted

along

with

the

The complaint, having

in

forma

pauperis

(IFP)

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

of

limitations period,

was

thereby timely.

See Dean
___ ____

Veterans Admin. Regional Office, 943 F.2d 667, 671

_______________________________

1991)

(holding that,

at

least in

application is subsequently

timely

filed,

presented

application

to

granted, a

for

statute

the

district

within

the

vacated on other grounds,

_________________________

the

of

court

statute

of

503 U.S.

(6th Cir.

case where

complaint is

limitations

along

an

limitations

902 (1992);

IFP

deemed

purposes,

with

v.

the

if

IFP

period),

Gilardi v.
_______

Schroeder, 833 F.2d 1226, 1233 (7th Cir. 1987) (same); Martin
_________
______

v. Demma,
_____

831 F.2d 69, 71

(5th Cir. 1987) (same);

see also
________

Jarrett v.
_______

(10th

US Sprint Communications Co., 22

_____________________________

Cir.) (same)

F.3d 256,

(dicta), cert. denied, 115

_____________

S.

259

Ct. 368

(1994).

They request

that

that we

affirm nonetheless on

the complaint is meritless.

merits,

leaving that

review to

first instance, both because

precise

scope

(apart

from the

limitations

district

of the

We decline to consider the

the

district court

it is the norm and

complaint is

judgment

on the

the ground

unclear.

pleadings

grounds)

not

addressed

by

court, with

the

agreement of

in the

because the

In

an order

on statute

either

of

party, the

the plaintiff,

see
___

-2-

documents

24

defendants

July 23,

dismissed

Duval,

recited to

the

Mahtesian,

be with

judgment referenced

June 26, 1996

of

25,

DuBois,

dismissal was

subsequent

&

complaint

and

as

against

Metrano.

prejudice and,

both the dismissal

The

while the

order of

and the grant of the judgment on the pleadings

1996, plaintiff's

notice of

appeal referenced

only the July 23

addressed

appeal,

ruling.

Yet,

the underlying

the

complaint is

arguments

merits

appear

not time-barred,

original defendants remains

district

court,

upon

insofar as the parties

of the

to

remand,

complaint on

presume

to

We leave

resolve,

instance, the current scope of the complaint.

Vacated and remanded.

_____________________

that,

the alleged liability

at issue.

No costs.

have

in

this

if

of all

it to

the

the

the

first

-3-