Pigott v. Vega

Opinion

USCA1 Opinion

September 3, 1996

                                [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT

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No. 95-2225


RASHID A. PIGOTT,

                                Plaintiff, Appellant,



                                          v.



                               ELIZABETH VEGA, 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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                           Stahl and Lynch, Circuit Judges.
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            Rashid A. Pigott on brief pro se.
            ________________

            Scott   Harshbarger,  Attorney   General,  and  Ellyn   H.  Lazar,
            ___________________                             _________________

        Assistant Attorney General, on brief for appellees.



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Per Curiam.   Pro se plaintiff  Rashid Pigott appeals  a
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            district court  order that  dismissed this 42  U.S.C.    1983



            action  as frivolous  under 28  U.S.C.    1915(d).   Pigott's



            complaint  sought  monetary   damages  and  declaratory   and



            injunctive relief on the grounds that the defendants violated



            his constitutional rights by falsifying the trial transcripts



            essential for Pigott's direct appeal and obstructing Pigott's



            efforts to correct those transcripts. 



                 We have thoroughly reviewed  the record and the parties'



            briefs  on appeal.  We  conclude that the  instant action was



            properly dismissed, although not  for the reasons relied upon



            by  the  district court.1    Rather,  we conclude  that  this
                                    1



            action   essentially  challenges  the  validity  of  Pigott's



            conviction  and  that  it  is therefore  barred  by  Heck  v.
                                                                 ____



            Humphrey, 114 S. Ct. 2364 (1994)(holding   1983  damages suit
            ________



            for conduct  that would  necessarily imply the  invalidity of



            plaintiff's  criminal  conviction  is  not  cognizable unless



            plaintiff's   conviction  or   sentence   has  already   been



            invalidated).   Cf. Tedford v. Hepting, 990 F.2d 745, 749 (3d
                            ___ _______    _______



            Cir. 1993)(where    1983 plaintiff sought  a declaration that



            his constitutional rights on appeal were violated as a result



                                
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               1The district court dismissed  this action for the reasons
               1

            stated  in the  defendants'  memorandum in  support of  their

            motion to dismiss.  That memorandum incorrectly asserted that

            Pigott's  claim that he was  deprived of his  right to appeal

            was  meritless  because  Pigott's   direct  appeal  was  then

            pending.   As  the defendants  have  waived this  argument on

            appeal, we do not rely on it.       



                                         -2-



of  falsification  of transcripts,  Third  Circuit  held that



            plaintiff's  civil rights suit was "a direct challenge to the



            validity of  his conviction  and the legality  of plaintiff's



            confinement"); Scruggs v. Moellering,  870 F.2d 376, 378 (7th
                           _______    __________



            Cir.)(upholding  dismissal  of    1983  claim  for injunction



            requiring judge and court  reporter to provide accurate trial



            transcripts  on ground  suit was  an improper  use of    1983



            where plaintiff sought injunction solely to facilitate attack



            on his conviction), cert. denied, 493 U.S. 956 (1989); Wilcox
                                _____ ______                       ______



            v. Miller, 691 F.2d 739, 741 (5th Cir. 1982)(claim that trial
               ______



            transcript  was altered  to assure affirmance  of defendant's



            conviction on appeal "would seem to challenge the validity of



            his  conviction").    As  Pigott's conviction  has  not  been



            invalidated, his claims for relief are not cognizable under  



            1983.2
                 2



                 In addition to seeking  relief for the alleged violation



            of his  right  to a  direct appeal,  Pigott's complaint  also



            alleged  that  defendant  Leary violated  his  constitutional



            rights  by unjustifiably  delaying Pigott's  appeal  from the



            denial of  his motion for new  trial.  As this  claim has not



            been  developed on  appeal, we  deem it  waived.   See, e.g.,
                                                               ___  ____



            Barrett v.  United States, 965 F.2d  1184, 1194 & n.  19 (1st
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               2We note that Pigott presently has a federal habeas action
               2

            pending in the district  court and an appeal from  the denial

            of  his motion for a  new trial pending  in the Massachusetts

            Appeals Court.    Both actions  raise  the same  claims  that

            Pigott has asserted here.   



                                         -3-



Cir. 1992)(issues  adverted to  in a perfunctory  fashion are



            deemed waived).3
                           3



                 In view of  the foregoing, the judgment  of the district



            court is  summarily affirmed,  see  Local Rule  27.1, but  we
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            modify the  dismissal to be  without prejudice.   See Guzman-
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            Rivera v. Rivera-Cruz, 29 F.3d 3, 6 (1st Cir. 1994).      
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               3Pigott  also contends  that defendant Leary  maintained a
               3

            policy  of deliberate  indifference to  the rights of  pro se
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            litigants  that resulted in the loss of his direct appeal and

            numerous violations of the rights of other pro se  prisoners.
                                                       ___ __

            To the extent Pigott seeks relief for the loss of his appeal,

            this  claim is  barred by  Heck.  Pigott  has no  standing to
                                       ____

            pursue claims on behalf of other prisoners.



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