Parra v. State of N.H.

• Court: Court of Appeals for the First Circuit
• Decided: November 15, 1994
• Docket: 94-1204
• Status: Published

Opinion

USCA1 Opinion

November 15, 1994
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 94-1204

                                   HERIBERTO PARRA,

                                Plaintiff, Appellant,

                                          v.

                           STATE OF NEW HAMPSHIRE, ET AL.,

                                Defendants, Appellees.

____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Paul J. Barbadoro, U.S. District Judge]
                                             ___________________

                                 ____________________

                                        Before

                                Cyr, Boudin and Stahl,
                                   Circuit Judges.
                                   ______________

                                 ____________________

            Heriberto Parra on brief pro se.
            _______________

____________________

____________________



Per  Curiam.   Pro se  plaintiff, Heriberto  Parra,
                      ___________    ___ __

            appeals from  the dismissal  of  his civil  rights  complaint

            under 28 U.S.C.    1915(d) for failure to state  a claim upon

            which relief can be granted.   Having thoroughly reviewed the

            record and  appellant's submissions on appeal,  we affirm the

            dismissal.

                      During  the  pendency  of this  appeal,  the United

            States Supreme Court  decided Heck v. Humphrey, ___ U.S. ___,
                                          ____    ________

            114 S. Ct. 2364  (1994).  Heck applies retroactively  to this
                                      ____

            case. See, e.g., Boyd  v. Biggers, 31 F.3d 279, 282  n.2 (5th
                  ___  ____  ____     _______

            Cir. 1994).   In Heck, the Court held that "a   1983 cause of
                             ____

            action  for  damages  attributable  to   an  unconstitutional

            conviction or  sentence does not accrue  until the conviction

            or  sentence has  been  invalidated."  114  S. Ct.  at  2374.

            Therefore, if  "a judgment  in favor  of the  plaintiff would

            necessarily  imply  the  invalidity   of  his  conviction  or

            sentence . . . ,  the complaint must be dismissed  unless the

            plaintiff can demonstrate that the conviction or sentence has

            already been invalidated." Id. at 2372.
                                       ___

                      Notwithstanding  the  Supreme  court's decision  in

            Heck, we  affirm the dismissal of  appellant's claims against
            ____

            the prosecutors on the ground of absolute immunity.  We agree

            with the  Fifth Circuit that "[b]ecause  absolute immunity is

            properly viewed  as 'immunity  from suit  rather than  a mere

            defense  to liability,'  Mitchell,  472 U.S.  at  526, it  is
                                     ________

            appropriate for  the district courts to  resolve the question

            of absolute  immunity before reaching the  Heck analysis when
                                                       ____

            feasible." Boyd, 31 F. 3d at 284.
                       ____



Appellant alleges that the prosecutors violated his

            constitutional  rights  by  attending  interviews   with  the

            victims  and   their  parents  held  after   his  arrest  and

            participating in  a  conspiracy  to  influence  the  victims'

            statements and "brainwash" them to make false accusations and

            commit perjury.   Appellant argues that  the prosecutors thus

            had  an "investigative role" in  the case and, therefore, are

            entitled only to qualified immunity.

                      We   agree  with  the   district  court   that  the

            prosecutors  are absolutely  immune from  suit in  this case.

            The Supreme Court recently  affirmed the "principle that acts

            undertaken by a prosecutor in preparing for the initiation of

            judicial  proceedings or  for trial, and  which occur  in the

            course of his role as an advocate for the State, are entitled

            to the  protections of absolute  immunity.   Those acts  must

            include the professional evaluation of the evidence assembled

            by   the  police   and   appropriate  preparation   for   its

            presentation at trial or before a grand jury after a decision

            to  seek  an   indictment  has  been   made."    Buckley   v.
                                                             _______

            Fitzsimmons, ___ U.S.  ___, 113 S. Ct. 2606,  2615-15 (1993).
            ___________

            The conduct  alleged clearly  falls within  those parameters.

            The  Court  has  specifically  noted  that  "an  out-of-court

            `effort   to  control  the   presentation  of   [a]  witness'

            testimony' is entitled to absolute immunity." Id.  (citations
                                                          ___

            omitted).

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Parra's remaining    1983 claims are foreclosed  by

            Heck  and  are therefore  frivolous  under     1915(d).   The
            ____

            complaint  alleges that  the  state actors  -- the  Sheriff's

            Department,  Police Department and its individual officers --

            were  "responsible for  the  false arrest,  .  . .  Malicious

            Prosecutorial   Misconduct;   Criminal   Police   Misconduct;

            Perjurious  Statements,  and Testimony;  Falsifying Evidence;

            The   Wrongful   Conviction;   Excessive   Sentences;   False

            Imprisonment  . .  . ."   It  alleges that  the State  of New

            Hampshire   and  its   Governor   are  responsible   for  the

            enforcement   of  the   unconstitutional  laws   under  which

            appellant  was  prosecuted.    The claims,  as  described  by

            appellant,   against  the  non-immune  state  actors  clearly

            challenge   the  legality   of  appellant's   conviction  and

            sentence, neither of which  has been invalidated.  Therefore,

            the claims are not cognizable under   1983.

                      Although  it might  be  argued that  a judgment  in

            favor  of  Parra  on   his  false  arrest  claim  would   not

            "necessarily  imply  the  invalidity  of  his  conviction  or

            sentence," Heck, 114  S. Ct.  at 2372, see  United States  v.
                       ____                        ___  _____________

            Crews, 445 U.S. 463, 474 (1980); Guerro v. Mulhearn, 498 F.2d
            _____                            ______    ________

            1249,  1254 (1st  Cir.  1974)  ("a false  arrest  .  . .  may

            constitute  a  compensable wrong  [under     1983] while  not

            undergirding the validity of the criminal conviction to which

            it  might be  related."), the  false arrest  claim is  in any

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event time-barred.  A  civil rights claim pursuant to    1983

            must be brought within  the applicable statute of limitations

            period of the  state within which the  incident occurred. See
                                                                      ___

            Wilson v. Garcia,  471 U.S. 261,  275 (1985).  In  this case,
            ______    ______

            the  arrest occurred  in  New Hampshire  and  the statute  of

            limitations for  claims of false  arrest is three  years. See
                                                                      ___

            N.H.  Rev. Stat. Ann.    507-B:7 (1993).   Under federal law,

            which controls  the  accrual of    1983  claims, see  Guzman-
                                                             ___  _______

            Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st  Cir. 1994), a claim
            ______    ___________

            for  false arrest  accrues on  the date  of the  arrest. See,
                                                                     ___

            e.g.,  Rose  v. Bartle,  871 F.2d  331,  351 (3d  Cir. 1989);
            ____   ____     ______

            McCune  v. Grand Rapids, 842  F.2d 903, 907  (6th Cir. 1988);
            ______     ____________

            Venegas  v.  Wagner, 704  F.2d  1144, 1146  (9th  Cir. 1983);
            _______      ______

            Singleton  v. New  York, 632  F.2d 185,  191 (2d  Cir. 1980),
            _________     _________

            cert. denied, 450  U.S. 920  (1981).  Parra  was arrested  in
            ____________

            January, 1990.  He  filed this claim in November,  1993, more

            than  three years later.   Therefore, the  district court did

            not err in dismissing Parra's false arrest claim.

                      Given that there is no cause of action under   1983

            against  the   state  actors,  even  proper   allegations  of

            conspiracy would not  suffice to bring the  private actors or

            immune parties within the  ambit of   1983.   Therefore, even

            if  appellant's complaint had  included more  than conclusory

            allegations of  collusion and conspiracy  between the private

            defendants, the prosecutors and  the local officials -- which

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it did not --  the   1983 claims against  those parties would

            still be foreclosed by Heck.
                                   ____

                      We affirm the dismissal of appellant's claims under

            42  U.S.C.   1985(3) and    1986 for  essentially the reasons

            contained  in the  magistrate  judge's order  of November  3,

            1993, which was  adopted by  the district court  in an  order

            dated December 8, 1993.

                      The district court  order dated February 11,  1994,

            dismissing the complaint is affirmed.
                                        ________

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