[NOT FOR PUBLICATION]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, Special Assistant Attorney General, and
Charles M. Wyzanski, Senior Litigation Counsel, Department of
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. 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.
Veterans Admin. Regional Office, 943 F.2d 667, 671 (6th Cir.
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.
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. US Sprint Communications Co., 22 F.3d 256, 259
(10th Cir.) (same) (dicta), cert. denied, 115 S. Ct. 368
(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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