

                    [NOT FOR PUBLICATION]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                                                                         

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documents  24  &amp;  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.                                      

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