
USCA1 Opinion

	




        November 1, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1060                                  CHRISTOPHER TURNER,                                Plaintiff, Appellant,                                          v.                               MCCARTHY PAYNE, ET AL.,                                Defendants, Appellees.                                 ____________________                                     ERRATA SHEET            The opinion of  this court issued  on October 31, 1995  is amended        as follows:            On page 3, line 5 from bottom, delete "Aside from the fact that".        October 31, 1995        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                            ____________________        No. 95-1060                                  CHRISTOPHER TURNER,                                Plaintiff, Appellant,                                          v.                               MCCARTHY PAYNE, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                      [Hon. Michael Ponsor, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                            ______________                                 ____________________            Christopher Turner on brief pro se.            __________________            Scott  Harshbarger,  Attorney  General,  and   William  J.  Meade,            __________________                             __________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                      Per  Curiam.   Christopher Turner,  a Massachusetts                      ___________            prisoner, appeals pro se the dismissal of his complaint under            42 U.S.C.   1983.  We affirm.                 Turner's complaint  was  filed  on  February  28,  1994.            Named as defendants were (1) two Assistant District Attorneys            who had  prosecuted charges  against Turner stemming  from an            arrest in June  1990 while  Turner was on  parole, (2)  three            Massachusetts parole officers who later  brought him in on  a            parole violation  warrant related to that arrest, and (3) the            Chairperson of  the Massachusetts Parole Board.   The charges            underlying the June 1990 arrest were dismissed with prejudice            on  September  19, 1990.    The  essence of  the  complaint's            allegations is  that use of those  dismissed charges resulted            in Turner's parole revocation and deprived him of due process            of law in violation of the Fourteenth Amendment.                 The  district court  found  that the  lawsuit was  filed            beyond the statute of limitations  and was time-barred.   The            applicable statute of limitations  for   1983 actions arising            in Massachusetts requires that  such claims be brought within            three years.    Street v.  Vose, 936  F.2d 38,  39 (1st  Cir.                            ______     ____            1991); Mass. Gen. L. ch. 260,    2A.  Turner does not dispute            that three years is the correct limitations period.   Rather,            Turner  argues  that,  for  various  reasons, the  applicable            period in which to sue should be suspended.                                           -3-                 First,  Turner  claims that  his  status  as a  prisoner            prevented a  timely filing  of his complaint.   However,  the            Massachusetts tolling  statute, Mass. Gen.  L. ch. 260,    7,            deleted imprisonment as  a tolling condition  in 1987.1   Id.                                                                      ___            at  40-41 & n.4.   In addition, assuming  that Turner's claim            accrued  between June  14,  1990, when  he was  arrested, and            September 19, 1990, when those charges were dismissed, Turner            has not been continuously  incarcerated since then.  Turner's            filings  indicate  that after  the  charges  were dropped  in            September 1990, he was  released on parole in  December 1990,            and remained on supervised release until September 1991, when            his parole was revoked.                 Second,  Turner  contends that  he  was  unaware of  the            pertinent   limitations  period  because   of  the  allegedly            inadequate law library and  legal assistance available at the            Disciplinary  Department Unit at  M.C.I. Cedar  Junction, the            restricted  unit where he  was confined  for over  two years.            Turner appears  to claim that such  conditions of confinement            were a legal disability sufficient to toll the running of the            three year  limitations period.  While  equitable tolling has                                            ____________________            1.  To the  extent that Turner contends  that the limitations            period should  be tolled  under Mass. Gen.  L. ch.  260,    7            because of mental incompetence, that claim was not before the            district  court and no basis for such  a claim appears in the            record.  In the  same vein, Turner's reliance on  Wheatley v.                                                              ________            AT  &  T Co.,  418  Mass. 394,  636  N.E. 2d  265  (1994), is            ____________            misplaced.    Wheatley  held  that  an  equivocal  employment                          ________            termination notice did not trigger the running of the statute            of limitations.                                          -4-            been  applied in   1983  cases, see, e.g.,  Lown v. Brimeyer,                                            ___  ____   ____    ________            956 F.2d  780, 782 (8th Cir.),  cert. denied, 113  S. Ct. 176                                            _____ ______            (1992); Smith v. Chicago Heights, 951 F.2d 834, 839 (7th Cir.                    _____    _______________            1992), the application of the doctrine is inappropriate here.            Turner states  that after his  return to prison  he consulted            with  two attorneys, and, moreover, does  not allege that his            access  to the prison law library was denied or restricted at            anytime or that it  did not contain the basic tools for legal            research.  See Wilson v. Geisen, 956 F.2d  738, 742 (7th Cir.                       ___ ______    ______            1992).   In  short, Turner  failed to  show that  despite his            diligence, he could not obtain the information needed to file            his  complaint on time.  See Cada v. Baxter Healthcare Corp.,                                     ___ ____    _______________________            920  F.2d 446, 451-52 (7th Cir. 1990), cert. denied, 501 U.S.                                                   _____ ______            1261 (1991).                 Since Turner's claims--based on events  that occurred in            1990--accrued more than  three years prior  to the filing  of            this complaint in February 1994, they were properly dismissed            by the district court as time-barred.                 Accordingly,  the judgment  of  the  district  court  is            affirmed.   The defendants'  motion to dismiss  the appeal as            ________            untimely is denied as moot.                        ______                                         -5-
