
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1649                                    ALFRED F. COTE,                                Plaintiff, Appellant,                                          v.                               WAYNE E. VETTER, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                   [Hon. Steven J. McAuliffe, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Alfred F. Cote on brief pro se.            ______________            Mark S.  Gearreald and Engel, Gearreald  & Gardner, P.A. on  brief            __________________     _________________________________        for appellees.                                 ____________________                                     July 8, 1994                                 ____________________                      Per Curiam.    In  1993,  Alfred  F.  Cote,  a  New                      __________            Hampshire inmate,  filed this action  under 42 U.S.C.    1983            claiming  that Vetter,  a  county  sheriff,  and  two  deputy            sheriffs,    Janvrine    and     Powers,    had    manifested            unconstitutional   conduct   when    they   executed   Cote's            extradition to Illinois on July 22, 1987.  The district court            dismissed the suit as untimely.  We affirm.                      The parties do  not dispute that New  Hampshire law            applies to this case.   Although Cote has attempted to invoke            other statutory  limitations periods, New  Hampshire's three-            year  personal injury statute of limitations, N.H. Rev. Stat.            Ann.  (RSA) 508:4,  governs this    1983  action.   Wilson v.                                                                ______            Garcia, 471  U.S. 261,  276-80 (1985)  (state law  limitation            ______            period, tolling  and revival  provisions apply).   As  Cote's            claim arose  out of  the events  surrounding his  extradition            from  New  Hampshire  to  Illinois  on  July  22,  1987,  the            limitations period  under RSA 508:4 expired on July 22, 1991.            Thus,  this action,  filed on  January  26, 1993  in the  New            Hampshire federal district  court, is barred unless  Cote can            take advantage of New Hampshire's saving statute, RSA 508:10.            The statute, entitled "Second Suit", provides:                           If judgment is rendered against                           the  plaintiff  in   an  action                           brought within the time limited                           therefor,  or  upon a  writ  of                           error thereon, and the right of                           action  is  not barred  by  the                           judgment, a  new action  may be                           brought  thereon  in  one  year                                         -2-                           after the judgment.            While the  statute is "designed  to insure a  diligent suitor            the right to a hearing  in court until he reaches a  judgment            on the  merits," Adams  v. Sullivan, 110  N.H. 101,  105, 261                             _____     ________            A.2d  273, 276  (1970),  "[o]nly where  the cause  has become            barred by the general limitation [RSA 510:4] does a plaintiff            have occasion  to rely upon  RSA 508:10."  Hughes  v. Hebert,                                                       ______     ______            106 N.H. 176,  178, 207 A.2d 432,  433 (1965).  Thus,  when a            timely action is later dismissed "for reasons not barring the            right of action  or determining it on its merits," id., a new                                                               ___            action,  arising out of  the same transaction  or occurrence,            may be brought  within a year of the  judgment, providing the            general limitation period will or has run.                      According to  Cote, this complaint was  first filed            against  these defendants,  and others,  in federal  district            court in the  Northern District of Illinois on  June 1, 1988.            On February  8, 1989, the court granted defendants' motion to            dismiss  concluding,  inter  alia,  that  it  lacked personal                                  _____  ____            jurisdiction  over Vetter,  Powers and Janvrine  because they            had not  performed any acts in Illinois.   Cote v. Kontos, et                                                       ____    __________            al., No. 88-C-4751,  Memorandum Opinion and Order  (N.D. Ill.            ___            Feb.  7,  1989).    Cote's  appeal  from  that  judgment  was            voluntarily  dismissed under Fed. R. App.  P. 42(b) on August            21, 1990.                      Clearly,  when  judgment  entered in  the  Illinois                                         -3-            federal  district court on  February 7, 1989,  the three-year            limitation period had  not yet expired, precluding  operation            of the saving statute.  Even if  we were to consider the date            of the voluntary dismissal of the appeal, August 21, 1990, as            the  operative "judgment" under  RSA 508:10, Cote  would have            only derived an additional year  to revive his suit, that is,            until August 21, 1991.1  Thus, under  either scenario, Cote's            action is untimely and was properly dismissed.                      Cote attempts to avoid this result by pointing to a            third and intervening   1983 action which he filed in the New            Hampshire district court in April 1990, within the three-year            limitation period.   Cote v. Rockingham  County, et al.,  No.                                 ____    __________________________            90-CV-152.   Vetter, Powers, and Janvrine were not originally            named defendants in that action.  Cote was allowed to file an            amended  complaint naming  them.   However,  on September  2,            1992, that amended  complaint was dismissed by  a magistrate-            judge and the case proceeded against the original defendants.            Cote  has represented  in this  complaint,  and argues  here,            that, in recommending  dismissal of the amended  complaint in            No.  90-CV-152,  the  district court  had  "ordered"  Cote to            remove   and  refile   a  separate   complaint  against   the            defendants.   However,  no  such "order"  ever  issued.   The                                            ____________________            1.  The  defendants-appellees  argue  that the  dismissal  in            Illinois for lack  of personal jurisdiction  would not, as  a            matter of law, implicate RSA 508:10.  However, we see no need            to reach that issue.                                         -4-            district  court's  November  4,  1992  clarification  of  its            September 2, 1992 recommendation states in part:                           The  relevant  issues  in  this                           case do  not include,  and will                           not  include,  any  issues that                           have  been  finally  determined                           during   proceedings   in   the                           United  States  District  Court                           for  the  Northern  District of                           Illinois.  Plaintiff is free to                           file any other  actions in this                           court  as  he  wishes; however,                           each    will   be    separately                           screened and each will be dealt                           with without  reference to  the                           others.     The  court   cannot                           estimate the time  it will take                           to   deal   with    newly-filed                           actions.  Such  a determination                           will depend on many intervening                           factors.            Judgment entered on  May 16, 1994, and while  Cote may appeal            the dismissal of these defendants  in that case, the time for                                                  ____            suing  them in this complaint  had clearly expired on January                           ____            26, 1993.   We have no occasion to decide  whether RSA 508:10            or any other tolling provision  would apply to stop the clock            and  defeat a  potential statute  of  limitations defense  in            Cote's intervening action.                      We have considered  appellant's remaining arguments            and find them without merit.                      Affirmed.                      ________                                         -5-
