[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1581
DENNIS J. BELDOTTI,
Plaintiff, Appellant,
v.
GWEN BOISVERT, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Robert B. Collings, U.S. Magistrate Judge]
Before
Torruella, Chief Judge,
Selya and Stahl, Circuit Judges.
Dennis J. Beldotti on brief pro se.
Scott Harshbarger, Attorney General, and Gregory I. Massing,
Assistant Attorney General, Criminal Bureau, on brief for appellees
William Delahunt and Gerald Pudolsky.
Scott Harshbarger, Attorney General, and Howard R. Meshnick,
Assistant Attorney General, Trial Division, on brief for appellees
Gwen Boisvert, William McCabe, Charles Barry, and James Sharkey.
Bruce R. Henry, Thomas M. Elcock, and Morrison, Mahoney & Miller
on brief for appellee Glover Memorial Hospital.
Brian Rogal and Law Offices of Timothy M. Burke on brief for
appellee Brian O'Hara.
David C. Jenkins and Dwyer & Jenkins on brief for appellees
Thomas J. Leary, Michael F. O'Toole and Albert P. Droney.
William J. Dailey, Jr., Robert G. Eaton, Janet Nally Barnes, and
Sloane and Walsh on brief for appellee Jonathan Diamond, M.D.
October 29, 1996
Per Curiam. On de novo review of the issues, we
agree that plaintiff's 1983 claims are barred by the
borrowed three-year state limitations period for tort
actions. The complaint seeks monetary damages arising from
the application to plaintiff's skin of a chemical solution
containing ortho-tolidine, a potential carcinogen, during an
investigatory search for the presence of occult (invisible)
blood. Plaintiff alleges Fourth Amendment, due process, and
other constitutional violations arising from the skin search,
which was conducted in August, 1988. He does not claim
injury nor damages arising from his later criminal conviction
and imprisonment. Thus the 1983 claims stated in the
complaint accrued on the date that the search was conducted,
and this complaint, filed almost five years later, was
untimely. See McIntosh v. Antonio, 71 F.3d 29, 34 (1st Cir.
1995). While the magistrate's opinion raises some
interesting questions about how a court might handle similar
claims filed during the pendency of parallel state criminal
proceedings, we need not reach those questions because this
complaint was filed well after the state proceedings had
concluded.
Plaintiff's allegation that he did not learn of the
latent effects of ortho-tolidine until October 30, 1992, does
not affect the accrual date. The gravamen of plaintiff's
1983 claims is not a medical injury but the alleged injury to
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his constitutional rights based on the ortho-tolidine skin
search. It is beyond dispute that when the skin search was
conducted plaintiff had sufficient notice of all of the facts
necessary to alert him to a possible constitutional injury,
as further demonstrated by his assertion of Fourth Amendment
motions to suppress the test results in his criminal trial.
Through reasonable diligence during the limitations period he
could have discovered the facts which he states were then
well known in scientific circles, and on which he now seeks
to predicate additional constitutional injury and damage.
See Marrapese v. State, 749 F.2d 934, 937-38 (1st Cir. 1984),
cert. denied, 474 U.S. 921 (1985).
Accordingly, the judgment below is affirmed and,
as no federal issues remain, the judgment is modified to
indicate that the pendent state claims are dismissed without
prejudice for lack of jurisdiction.
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