
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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