
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1828                                   CALVIN F. TATE,                                Plaintiff, Appellant,                                          v.                                   LARRY E. DUBOIS,                                   ELEEN ELIAS AND                                      IAN TINK,                                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 Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Calvin F. Tate on brief pro se.            ______________            Scott  Harshbarger,  Attorney  General,  and  Gregory  I  Massing,            __________________                            ___________________        Assistant  Attorney General, on  brief for appellees,  Eleen Elias and        Ian Tink.            Nancy  Ankers  White,  Special  Assistant  Attorney  General,  and            ____________________        Daniel  A.  Less, Counsel,  Department  of  Correction, on  brief  for        ________________        appellee, Larry E. DuBois.                                 ____________________                                    March 8, 1996                                 ____________________                      Per Curiam.  Plaintiff-appellant, who was committed                      __________            in 1983 to  the Bridgewater,  Massachusetts Treatment  Center            for  the Sexually  Dangerous, appeals  the  dismissal of  his            civil rights  complaint under 42  U.S.C.   1983 as  barred by            the  statute of  limitations.    The  district  court  fairly            construed the  complaint as  seeking damages for  appellant's            transfer,  in 1990, to M.C.I., Cedar Junction where allegedly            he  was held  without  treatment  for more  than  a year,  in            violation of state law governing the indeterminate commitment            of sexually dangerous  persons under Mass. Gen. L.  ch. 123A.            Correctly   applying  federal   law   standards,  the   court            determined that the  alleged cause of  action accrued at  the            latest on September  25, 1991, when the  state court declared            the  transfer  improper  and ordered  plaintiff's  return  to            Bridgewater.  Appellant's continued  incarceration at M.C.I.,            Cedar Junction  for a period  of time after the  accrual date            did not  trigger a  new limitations  period  because in  fact            appellant had requested or approved the stay of his return to            Bridgewater while  he petitioned  for release  on the  ground            that he was "no longer  sexually dangerous."  Thus, the court            properly held  this complaint  barred by  the borrowed  state            limitations period of three years  for the commencement of an            action sounding in tort under 42 U.S.C.   1983.                      Plaintiff argues on appeal that his suit was timely            commenced by  his earlier filing  in the district court  of a                                         -2-            petition for a  writ of habeas corpus, which  he describes as            "identical"  to the  instant complaint.1    We have  compared                                                   1            plaintiff's  pending  petition  for  habeas  relief with  the            complaint  in  this  action.   Without  attempting  a precise            characterization of  his allegations,  we  conclude that  the            pleadings are significantly  different from one another.   In            the  habeas petition plaintiff seeks release from his current            imprisonment at the Bridgewater treatment center.  The thrust            of his civil  rights complaint, as  we have said, is  a quest            for damages for  the period during which he  was incarcerated            without  treatment at M.C.I.,  Cedar Junction.   Although the            civil rights complaint  also contains a demand  for immediate            release, it  was properly  dismissed without prejudice  since            habeas corpus  is the exclusive  remedy for a  state prisoner            seeking release from  his current confinement.   See Heck  v.                                                             ___ ____            Humphrey, 114 S.Ct. 2364, 2369 (1994).  Any implied claim for            ________            damages  based on  the  alleged  invalidity  of  the  current            confinement also was  properly dismissed, as premature.   Id.                                                                      ___            at 2373.   The district court's observations in  footnote one                                            ____________________               1   The  habeas proceeding  was closed in  November, 1994,               1            apparently  due to  a clerical  error.   It  was reopened  on            plaintiff's motion during the  pendency of this appeal.   See                                                                      ___            Tate v.  Commonwealth, No.  94-cv-10716, (D.  Mass. Oct.  13,            ____     ____________            1995) (endorsed order).   Although  plaintiff represented  to            the district court that he  would withdraw this appeal if his            habeas case was  reopened, he has not sought  to dismiss this            appeal.                                         -3-            of   its  memorandum  order   do  not  require   a  different            conclusion.                      Affirmed.                      ________                                         -4-
