USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________

No. 96-1074

BARRY BROWN,

Plaintiff, Appellant,

v.

CITY OF BOSTON, ET AL.,

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 Lynch, Circuit Judges.
______________

____________________

Elliott Fine
_____________

and

Elliott Fine and Associates

______________________________

on

brief

appellant.
John M. Townsend,
_________________

General Counsel,

General Counsel, Merita A. Hopkins,

Joan T. Kennedy,
________________

Assist

Corporation Counsel, and Kevin

_________________

_____

McDermott, Assistant Corporation Counsel, on brief for appellees.

_________

____________________

October 15, 1996

____________________

Per Curiam.
___________

record,

it

Upon

careful review

clearly appears

substantial question,

that

and we

of

this

the briefs

appeal presents

perceive no reason

and

no

to reverse

the judgment from which plaintiff appeals.

Specifically,

plaintiff's

claim.

prison

district

negligence were

See Daniels v.
___ _______

officials for

Manarite v.
________

957-59 (1st Cir.)

not act

with the

(1986) (no constitutional due

stated against

protect");

agree

allegations of

state a federal

327, 331-33

we

with "deliberate

insufficient to

Williams, 474
________

U.S.

process claim was

"negligent failure

City of Springfield, 957

____________________

(dismissing

court that

to

F.2d 953,

1983 claims where police did

indifference"), cert. denied,

____________

506

U.S.

837

(1992).

harassment

by

Even

the prison

plaintiff's

staff

sketchy

was grounded

claim

in

of

the same

insufficient allegations of negligence underlying the rest of

his complaint.

On that

basis, the district

determined that

defendants were entitled to

court properly

judgment on any

federal claims.

The

would not

district

court

exercise pendent

also properly

determined

jurisdiction over

any remaining

state claims, once the federal claims were dismissed.

U.S.C.

1367(c)(3) (district court

that it

See 28
___

may decline supplemental

jurisdiction if it has dismissed all claims over which it has

original jurisdiction); Carnegie-Mellon University v. Cohill,

__________________________
______

484 U.S.

343, 350 (1988)

(district court has

discretion to

retain

or

consideration

dismiss

the

remaining

of factors such

convenience, and

state

as comity,

claims,

upon

judicial economy,

fairness); Roche v. John Hancock Mut. Life

_____
_______________________

Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996) (same).

________

of that discretion is apparent

have preferred a remand

here.

No abuse

Although plaintiff may

to the state court, in light

of the

tolling provision of 28

by

the dismissal.

U.S.C.

1367(d), he was

not harmed

See Edmondson & Gallagher v. Alban Towers

___ _____________________
____________

Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) (

_____________

tolls the state

statute of

over

federal

which

jurisdiction

reduces the

until

limitations on

court

30 days

has

after

any state

exercised

its

1367(d)

supplemental

dismissal and

concern that plaintiffs would

claim

thus

lose their claims

if their case were dismissed).

We note that, while this appeal was pending (and without

following

the procedure set forth

Colocotroni,
___________

asked the

601 F.2d

39,

42 (1st

in Puerto Rico
___________

v. SS Zoe
______

Cir. 1979)),

plaintiff

district court to vacate the judgment of dismissal

and remand the case to the state court.

Plaintiff apparently

believed that the

dismissed

statute of limitations had expired

on his

state law claims and that he could not refile them

in state court.

court granted

By orders

plaintiff's

dated July 16, 1996, the district

motions and

remanded

the

case.

Defendants have moved for reconsideration or clarification of

those orders, but

the district

-3-

court has not

yet acted

on

that

motion.

In

other

purported to vacate the

words,

the

district

court

very judgment that is now

has

before us

on appeal.

For the purpose of this appeal, we consider the July 16,

1996, orders to be

F.2d 383, 387

entered

"[i]f

nullities.

(1st Cir.

1991) (giving no

without compliance

courts did

not

See Toscano v.
___ _______

with the

demand that

Chandris, 934
________

effect to

Colocotroni procedure;
___________

litigants recognize

respect jurisdictional borders, the judicial system

adrift

in

proceedings").

sea

of

Once

district court may act

competing

our

orders

decrees

mandate

and

issues,

and

would be

duplicative

however,

on plaintiff's post-judgment

the

motions

and defendants'

party desire

motion for reconsideration.

to appeal from

Should either

any such subsequent

rulings, a

separate notice of appeal must be filed.

The

motion to

judgment appealed from

is affirmed, and appellees'

________

be heard at oral argument is denied.

______

Loc. R. 27.1.

See 1st Cir.

___

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