
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 96-1074                                     BARRY BROWN,                                Plaintiff, Appellant,                                          v.                               CITY OF BOSTON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Lynch, Circuit Judges.                                            ______________                                 ____________________            Elliott  Fine  and  Elliott  Fine  and  Associates  on  brief  for            _____________       ______________________________        appellant.            John  M. Townsend,  General Counsel,  Joan T.  Kennedy,  Assistant            _________________                     ________________        General Counsel, Merita A. Hopkins,  Corporation Counsel, and Kevin S.                         _________________                            ________        McDermott, Assistant Corporation Counsel, on brief for appellees.        _________                                 ____________________                                   October 15, 1996                                 ____________________                 Per  Curiam.   Upon  careful review  of  the briefs  and                 ___________            record,  it  clearly appears  that  this  appeal presents  no            substantial question,  and we  perceive no reason  to reverse            the judgment from which plaintiff appeals.                   Specifically,  we  agree  with the  district  court that            plaintiff's  allegations of  negligence were  insufficient to            state a federal  claim.   See Daniels v.  Williams, 474  U.S.                                      ___ _______     ________            327, 331-33  (1986) (no constitutional due  process claim was            stated against  prison  officials for  "negligent failure  to            protect");  Manarite v.  City of  Springfield, 957  F.2d 953,                        ________     ____________________            957-59 (1st Cir.)  (dismissing   1983 claims where police did            not act  with "deliberate  indifference"), cert. denied,  506                                                       ____________            U.S.  837   (1992).    Even  plaintiff's   sketchy  claim  of            harassment  by  the prison  staff  was grounded  in  the same            insufficient allegations of negligence underlying the rest of            his complaint.   On that  basis, the district  court properly            determined that  defendants were entitled to  judgment on any            federal claims.                  The  district  court  also properly  determined  that it            would not  exercise pendent  jurisdiction over  any remaining            state claims, once the federal claims were dismissed.  See 28                                                                   ___            U.S.C.   1367(c)(3) (district court  may decline supplemental            jurisdiction if it has dismissed all claims over which it has            original jurisdiction); Carnegie-Mellon University v. Cohill,                                    __________________________    ______            484 U.S.  343, 350 (1988)  (district court has  discretion to            retain   or   dismiss  the   remaining  state   claims,  upon            consideration  of factors such  as comity,  judicial economy,            convenience, and  fairness); Roche v. John  Hancock Mut. Life                                         _____    _______________________            Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996) (same).   No abuse            ________            of that discretion is apparent  here.  Although plaintiff may            have preferred a remand  to the state court, in light  of the            tolling provision of 28  U.S.C.   1367(d), he was  not harmed            by  the dismissal.  See Edmondson & Gallagher v. Alban Towers                                ___ _____________________    ____________            Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (  1367(d)            _____________            tolls the state  statute of  limitations on  any state  claim            over   which  a  federal  court  has  exercised  supplemental            jurisdiction  until  30 days  after  its  dismissal and  thus            reduces the  concern that plaintiffs would  lose their claims            if their case were dismissed).                 We note that, while this appeal was pending (and without            following  the procedure set forth  in Puerto Rico  v. SS Zoe                                                   ___________     ______            Colocotroni,  601 F.2d  39,  42 (1st  Cir. 1979)),  plaintiff            ___________            asked the  district court to vacate the judgment of dismissal            and remand the case to the state court.  Plaintiff apparently            believed that the  statute of limitations had expired  on his            dismissed  state law claims and that he could not refile them            in state court.  By orders  dated July 16, 1996, the district            court granted  plaintiff's  motions and  remanded  the  case.            Defendants have moved for reconsideration or clarification of            those orders, but  the district  court has not  yet acted  on                                         -3-            that  motion.    In  other  words,  the  district  court  has            purported to vacate the  very judgment that is now  before us            on appeal.                 For the purpose of this appeal, we consider the July 16,            1996, orders to be  nullities.  See Toscano v.  Chandris, 934                                            ___ _______     ________            F.2d 383, 387  (1st Cir.  1991) (giving no  effect to  orders            entered  without compliance  with the  Colocotroni procedure;                                                   ___________            "[i]f  courts did  not  demand that  litigants recognize  and            respect jurisdictional borders, the judicial system  would be            adrift  in  a  sea   of  competing  decrees  and  duplicative            proceedings").     Once  our  mandate  issues,  however,  the            district court may act  on plaintiff's post-judgment  motions            and defendants'  motion for reconsideration.    Should either            party desire  to appeal from  any such subsequent  rulings, a            separate notice of appeal must be filed.                 The  judgment appealed from  is affirmed, and appellees'                                                 ________            motion to  be heard at oral argument is denied.  See 1st Cir.                                                    ______   ___            Loc. R. 27.1.                                         -4-
