USCA1 Opinion
November 1, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1060
CHRISTOPHER TURNER,
Plaintiff, Appellant,
v.
MCCARTHY PAYNE, ET AL.,
Defendants, Appellees.
____________________
ERRATA SHEET
The opinion of this court issued on October 31, 1995 is amended
as follows:
On page 3, line 5 from bottom, delete "Aside from the fact that".
October 31, 1995 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1060
CHRISTOPHER TURNER,
Plaintiff, Appellant,
v.
MCCARTHY PAYNE, ET AL.,
Defendants, Appellees.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael Ponsor, U.S. District Judge] ___________________
____________________
Before
Torruella, Chief Judge, ___________
Selya and Boudin, Circuit Judges. ______________
____________________
Christopher Turner on brief pro se. __________________
Scott Harshbarger, Attorney General, and William J. Meade, __________________ __________________
Assistant Attorney General, on brief for appellees.
____________________
____________________
Per Curiam. Christopher Turner, a Massachusetts ___________
prisoner, appeals pro se the dismissal of his complaint under
42 U.S.C. 1983. We affirm.
Turner's complaint was filed on February 28, 1994.
Named as defendants were (1) two Assistant District Attorneys
who had prosecuted charges against Turner stemming from an
arrest in June 1990 while Turner was on parole, (2) three
Massachusetts parole officers who later brought him in on a
parole violation warrant related to that arrest, and (3) the
Chairperson of the Massachusetts Parole Board. The charges
underlying the June 1990 arrest were dismissed with prejudice
on September 19, 1990. The essence of the complaint's
allegations is that use of those dismissed charges resulted
in Turner's parole revocation and deprived him of due process
of law in violation of the Fourteenth Amendment.
The district court found that the lawsuit was filed
beyond the statute of limitations and was time-barred. The
applicable statute of limitations for 1983 actions arising
in Massachusetts requires that such claims be brought within
three years. Street v. Vose, 936 F.2d 38, 39 (1st Cir. ______ ____
1991); Mass. Gen. L. ch. 260, 2A. Turner does not dispute
that three years is the correct limitations period. Rather,
Turner argues that, for various reasons, the applicable
period in which to sue should be suspended.
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First, Turner claims that his status as a prisoner
prevented a timely filing of his complaint. However, the
Massachusetts tolling statute, Mass. Gen. L. ch. 260, 7,
deleted imprisonment as a tolling condition in 1987.1 Id. ___
at 40-41 & n.4. In addition, assuming that Turner's claim
accrued between June 14, 1990, when he was arrested, and
September 19, 1990, when those charges were dismissed, Turner
has not been continuously incarcerated since then. Turner's
filings indicate that after the charges were dropped in
September 1990, he was released on parole in December 1990,
and remained on supervised release until September 1991, when
his parole was revoked.
Second, Turner contends that he was unaware of the
pertinent limitations period because of the allegedly
inadequate law library and legal assistance available at the
Disciplinary Department Unit at M.C.I. Cedar Junction, the
restricted unit where he was confined for over two years.
Turner appears to claim that such conditions of confinement
were a legal disability sufficient to toll the running of the
three year limitations period. While equitable tolling has
____________________
1. To the extent that Turner contends that the limitations
period should be tolled under Mass. Gen. L. ch. 260, 7
because of mental incompetence, that claim was not before the
district court and no basis for such a claim appears in the
record. In the same vein, Turner's reliance on Wheatley v. ________
AT & T Co., 418 Mass. 394, 636 N.E. 2d 265 (1994), is ____________
misplaced. Wheatley held that an equivocal employment ________
termination notice did not trigger the running of the statute
of limitations.
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been applied in 1983 cases, see, e.g., Lown v. Brimeyer, ___ ____ ____ ________
956 F.2d 780, 782 (8th Cir.), cert. denied, 113 S. Ct. 176 _____ ______
(1992); Smith v. Chicago Heights, 951 F.2d 834, 839 (7th Cir. _____ _______________
1992), the application of the doctrine is inappropriate here.
Turner states that after his return to prison he consulted
with two attorneys, and, moreover, does not allege that his
access to the prison law library was denied or restricted at
anytime or that it did not contain the basic tools for legal
research. See Wilson v. Geisen, 956 F.2d 738, 742 (7th Cir. ___ ______ ______
1992). In short, Turner failed to show that despite his
diligence, he could not obtain the information needed to file
his complaint on time. See Cada v. Baxter Healthcare Corp., ___ ____ _______________________
920 F.2d 446, 451-52 (7th Cir. 1990), cert. denied, 501 U.S. _____ ______
1261 (1991).
Since Turner's claims--based on events that occurred in
1990--accrued more than three years prior to the filing of
this complaint in February 1994, they were properly dismissed
by the district court as time-barred.
Accordingly, the judgment of the district court is
affirmed. The defendants' motion to dismiss the appeal as ________
untimely is denied as moot. ______
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