USCA1 Opinion
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 96-1074
BARRY BROWN,
Plaintiff, Appellant,
v.
CITY OF BOSTON, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Boudin and Lynch, Circuit Judges.
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Elliott Fine and Elliott Fine and Associates on brief for
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appellant.
John M. Townsend, General Counsel, Joan T. Kennedy, Assistant
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General Counsel, Merita A. Hopkins, Corporation Counsel, and Kevin S.
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McDermott, Assistant Corporation Counsel, on brief for appellees.
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October 15, 1996
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Per Curiam. Upon careful review of the briefs and
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record, it clearly appears that this appeal presents no
substantial question, and we perceive no reason to reverse
the judgment from which plaintiff appeals.
Specifically, we agree with the district court that
plaintiff's allegations of negligence were insufficient to
state a federal claim. See Daniels v. Williams, 474 U.S.
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327, 331-33 (1986) (no constitutional due process claim was
stated against prison officials for "negligent failure to
protect"); Manarite v. City of Springfield, 957 F.2d 953,
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957-59 (1st Cir.) (dismissing 1983 claims where police did
not act with "deliberate indifference"), cert. denied, 506
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U.S. 837 (1992). Even plaintiff's sketchy claim of
harassment by the prison staff was grounded in the same
insufficient allegations of negligence underlying the rest of
his complaint. On that basis, the district court properly
determined that defendants were entitled to judgment on any
federal claims.
The district court also properly determined that it
would not exercise pendent jurisdiction over any remaining
state claims, once the federal claims were dismissed. See 28
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U.S.C. 1367(c)(3) (district court may decline supplemental
jurisdiction if it has dismissed all claims over which it has
original jurisdiction); Carnegie-Mellon University v. Cohill,
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484 U.S. 343, 350 (1988) (district court has discretion to
retain or dismiss the remaining state claims, upon
consideration of factors such as comity, judicial economy,
convenience, and fairness); Roche v. John Hancock Mut. Life
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Ins. Co., 81 F.3d 249, 257 (1st Cir. 1996) (same). No abuse
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of that discretion is apparent here. Although plaintiff may
have preferred a remand to the state court, in light of the
tolling provision of 28 U.S.C. 1367(d), he was not harmed
by the dismissal. See Edmondson & Gallagher v. Alban Towers
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Tenants Ass'n, 48 F.3d 1260, 1267 (D.C. Cir. 1995) ( 1367(d)
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tolls the state statute of limitations on any state claim
over which a federal court has exercised supplemental
jurisdiction until 30 days after its dismissal and thus
reduces the concern that plaintiffs would lose their claims
if their case were dismissed).
We note that, while this appeal was pending (and without
following the procedure set forth in Puerto Rico v. SS Zoe
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Colocotroni, 601 F.2d 39, 42 (1st Cir. 1979)), plaintiff
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asked the district court to vacate the judgment of dismissal
and remand the case to the state court. Plaintiff apparently
believed that the statute of limitations had expired on his
dismissed state law claims and that he could not refile them
in state court. By orders dated July 16, 1996, the district
court granted plaintiff's motions and remanded the case.
Defendants have moved for reconsideration or clarification of
those orders, but the district court has not yet acted on
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that motion. In other words, the district court has
purported to vacate the very judgment that is now before us
on appeal.
For the purpose of this appeal, we consider the July 16,
1996, orders to be nullities. See Toscano v. Chandris, 934
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F.2d 383, 387 (1st Cir. 1991) (giving no effect to orders
entered without compliance with the Colocotroni procedure;
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"[i]f courts did not demand that litigants recognize and
respect jurisdictional borders, the judicial system would be
adrift in a sea of competing decrees and duplicative
proceedings"). Once our mandate issues, however, the
district court may act on plaintiff's post-judgment motions
and defendants' motion for reconsideration. Should either
party desire to appeal from any such subsequent rulings, a
separate notice of appeal must be filed.
The judgment appealed from is affirmed, and appellees'
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motion to be heard at oral argument is denied. See 1st Cir.
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Loc. R. 27.1.
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