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[NOT FOR PUBLICATION]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,
__________________
Assistant
Ian Tink.

Attorney

Attorney General, on

General,

and

Gregory I Massi
_________________

brief for appellees,

Eleen Elias

Nancy Ankers White,

____________________

Special

Daniel A. Less, Counsel,

________________

Assistant

Department

of

Attorney

General,

Correction, on

brief

appellee, Larry E. DuBois.

____________________

March 8, 1996
____________________

Per Curiam.
__________

Plaintiff-appellant, who was committed

in 1983 to

for

the Bridgewater,

the Sexually

civil rights

the

construed the

he

Dangerous, appeals

complaint under 42

statute of

transfer,

Massachusetts Treatment

limitations.

complaint as

the

U.S.C.

The

Center

dismissal of

1983 as

district

barred by

court

seeking damages for

his

fairly

appellant's

in 1990, to M.C.I., Cedar Junction where allegedly

was held

without

treatment

for more

than

a year,

in

violation of state law governing the indeterminate commitment

of sexually dangerous

Correctly

applying

persons under Mass. Gen. L.

federal

law

standards,

determined that the

alleged cause of

latest on September

25, 1991, when the

the

transfer

improper

and ordered

ch. 123A.

the

court

action accrued at

the

state court declared

plaintiff's

return

to

Bridgewater.

Cedar Junction

did not

Appellant's continued

for a period

trigger a

incarceration at M.C.I.,

of time after the

new limitations

period

accrual date

because in

fact

appellant had requested or approved the stay of his return to

Bridgewater while

he petitioned

that he was "no longer

properly held

for release

sexually dangerous."

this complaint

barred by

limitations period of three years

on the

ground

Thus, the court

the borrowed

state

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

-2-

in the district court

of a

petition for a

writ of habeas corpus, which

"identical"

to the

plaintiff's

pending

complaint

in

this

characterization of

instant complaint.1
1

petition

action.

We have

habeas

Without

his allegations,

pleadings are significantly

the

for

he describes as

relief with

attempting

we

compared

the

a precise

conclude that

the

different from one another.

In

habeas petition plaintiff seeks release from his current

imprisonment at the Bridgewater treatment center.

The thrust

of his civil

rights complaint, as

for damages for

without

the period during which he

treatment at M.C.I.,

civil rights complaint

release, it

also contains a demand

for immediate

dismissed without prejudice

remedy for a

based on

the

confinement also was

at 2373.

alleged

since

state prisoner

his current confinement.

Humphrey, 114 S.Ct. 2364, 2369 (1994).

________

damages

was incarcerated

Although the

is the exclusive

seeking release from

a quest

Cedar Junction.

was properly

habeas corpus

we have said, is

See Heck
___ ____

v.

Any implied claim for

invalidity

of

the

current

properly dismissed, as premature.

The district court's observations in

Id.
___

footnote one

____________________

1
1

The

apparently

habeas proceeding
due to

a clerical

plaintiff's motion during the

Tate v.
____

Commonwealth, No.
____________

1995) (endorsed order).

the district court that he
habeas case was

was closed in
error.

It

November, 1994,
was reopened

pendency of this appeal.

94-cv-10716, (D.
Although

Mass. Oct.

plaintiff represented

on
See
___
13,
to

would withdraw this appeal if his

reopened, he has not sought

appeal.

-3-

to dismiss this

of

its

memorandum

conclusion.

Affirmed.
________

order

do

not

require

different

-4-