
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                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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,  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                                                                      ___                                         -2-            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.                 _____________________                                         -3-
