Rodriguez v. Carhart

• Court: Court of Appeals for the First Circuit
• Decided: January 10, 1996
• Docket: 95-1345
• Status: Published

Opinion

USCA1 Opinion

          January 10, 1996      [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                                     
                                 ____________________



        No. 95-1345



                                  JOSE L. RODRIGUEZ,



                                Plaintiff, Appellant,



                                          v.



                               JUDD J. CARHART, ET AL.,



                                Defendants, Appellees.



                                                     
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APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                       [Hon. Rya W. Zobel, U.S. District Judge]
                                           ___________________



                                                     
                                 ____________________



                                        Before



                                Cyr, Boudin and Lynch,

                                   Circuit Judges.
                                   ______________



                                                     
                                 ____________________


Jose L. Rodriguez on brief pro se.
             _________________

             Walter B. Prince and Peckham, Lobel, Casey, Prince & Tye on brief
             ________________     ___________________________________

        for appellee Judd Carhart.

             George Criss on brief pro se.
             ____________

             Lisa Poblocki and Dolores E. O'Neill on brief for appellee Robert
             _____________     __________________

        Craig.

             Scott Harshbarger,  Attorney General, and Elisabeth  J. Medvedow,
             _________________                         ______________________

        Assistant Attorney General, on brief for appellee Sydney Hanlon.


____________________


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Per Curiam.  Jose Rodriguez appeals from a district
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            court  judgment dismissing  his civil  rights claim  under 42



            U.S.C.   1983,  together with pendent state-law  claims.  His



            section 1983  claim charged  that  prosecutor Sydney  Hanlon,



            defense counsel Judd Carhart, court officer Robert Craig, and



            court  reporter   George  Criss   conspired  to   ensure  his



            conviction by  unconstitutional means  and to cover  up their



            misconduct  by  withholding,  losing  or   altering  critical



            transcripts.    We  affirm  the  district  court's  dismissal



            ruling,  in accordance with Heck v. Humphrey, 114 S. Ct. 2364
                                        ____    ________



            (1994),   but  remand  to  permit  entry  of  a  judgment  of



            dismissal, without prejudice.   See Guzman-Rivera v.  Rivera-
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            Cruz, 29 F.3d 3, 6 (1st Cir. 1994).  The      claim      that
            ____



            defendants conspired  to  procure Rodriguez's  conviction  by



            unconstitutional  means,  and  to  cover  up  their  actions,



            essentially  challenges  the   validity  of  the   underlying



            conviction.  See Abella  v. Rubino, 63 F.3d 1063,  1065 (11th
                         ___ ______     ______



            Cir. 1995) (per curiam) (dismissing, under Heck, Bivens claim
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            that defendants  conspired to ensure civil action plaintiff's



            conviction  by fabricating  testimony and  other evidence  in



            criminal  trial); Boyd v. Biggers, 31 F.3d 279, 283 (5th Cir.
                              ____    _______



            1994) (per curiam)  (dismissing, under Heck,  a   1983  claim
                                                   ____



            that  defendants  had  conspired  to  convict   civil  action



            plaintiff by providing ineffective assistance of counsel  and



            withholding  exculpatory  evidence  in criminal  proceeding);


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Bell  v. Peters, 33 F.3d 18,  19 (7th Cir. 1994) (per curiam)
            ____     ______



            (vacating,  under Heck, a  judgment on the  merits of section
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            1983 plaintiff's claim that  his criminal conviction had been



            procured   by   unconstitutional   conduct;   remanding   for



            determination as  to whether conviction had been overturned).



            The holding  in Heck applies  retroactively.  See  Abella, 63
                            ____                          ___  ______



            F.3d at 1064; Boyd, 31 F.3d at 282 n.2.
                          ____



                      Since  Craig  and Criss  had  defaulted  before the



            district  court  dismissed   the  present  action,  Rodriguez



            argues, citing Quirindongo Pacheco v. Rolon Morales, 953 F.2d
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            15  (1st Cir. 1992), that  he should have  been notified that



            the court intended to review the sufficiency of the complaint



            against those  defendants.   Unlike in the  Quirindongo case,
                                                        ___________



            id. at  16, neither prior  notice nor an  evidentiary hearing
            __



            would  have  been useful  to  Rodriguez  since Heck  required
                                                           ____



            dismissal of the damages claim as a matter of law.  



                      Rodriguez argues  that the claim  against the court



            reporter should not have  been dismissed, because the failure



            to deliver accurate transcripts was a  "subissue" in the case



            and  he  cannot  overturn  his  conviction  without  accurate



            transcripts.1    Because  Rodriguez alleged  that  the  court



                                
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                 1Rodriguez may be suggesting that the delay in providing

            transcripts violates his due process right to a speedy appeal

            and that such  a claim  should not be  dismissed under  Heck.
                                                                    ____

            See,  e.g., Harris v. Champion,  51 F.3d 901,  906, 909 (10th
            ___   ____  ______    ________

            Cir.  1995)  (considering     1983 claim  for  money  damages

            alleging  excessive  delay  in  processing   direct  criminal

            appeals); but see United  States v. Luciano-Mosquera, 63 F.3d
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reporter  conspired  with the  other defendants  to withhold,



            lose  or  alter  transcripts   necessary  to  show  that  his



            conviction  is invalid,  he is,  in essence,  challenging his



            conviction.  See Sutton v. Lash, 576 F.2d 738, 746  (7th Cir.
                         ___ ______    ____



            1978) (per curiam) (retrial is proper remedy for claimed loss



            of  critical transcripts  which preclude  meaningful criminal



            appeal); see also  Wilcox v. Miller, 691 F.2d  739, 741 & n.4
                     ___ ____  ______    ______



            (5th  Cir.  1982)  (claim   that  defendants  in  civil  suit



            conspired to  alter criminal  trial transcripts to  assure an



            affirmance of civil plaintiff's criminal conviction on appeal



            "would seem" to  challenge validity of  criminal conviction);



            accord  Tedford v.  Hepting, 990  F.2d 745  (3d Cir.),  cert.
            ______  _______     _______                             ____



            denied, 114 S. Ct. 317 (1993) (similar).  Consequently,  Heck
            ______                                                   ____



            applies.  



                      Since   the   Rodriguez   conspiracy   claim   also



            challenges  the validity  of  his conviction,  the claim  for



            declaratory  relief  was properly  dismissed  as  well.   See
                                                                      ___



            Abella,  63  F.3d  at  1066  (dismissing  Bivens  action  for
            ______                                    ______


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            1142, 1158  (1st Cir.  1995) (analyzing merits  of underlying

            appeal from conviction to determine prejudice  resulting from

            appellate  delay).    Because  this claim  was  not  squarely

            presented  to  the district  court,  we  deem it  waived  for

            present purposes.   See  United States v.  Ocasio-Rivera, 991
                                ___  _____________     _____________

            F.2d 1,  3 (1st Cir. 1993).   Yet another hurdle  may loom in

            the path of any  section 1983 claim for damages based on such

            a  speedy-appeal claim.    It may  well  be that  Parratt  v.
                                                              _______

            Taylor, 451 U.S. 527, 541-44 (1981), would be implicated were
            ______

            it  to appear  that  Massachusetts law  affords Rodriguez  an

            adequate   post-deprivation   remedy.      See   Campiti   v.
                                                       ___   _______

            Commonwealth, 630 N.E.2d 596, 598 (Mass. 1994).  
            ____________



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declaratory   relief   against   defendants,  who   allegedly



            conspired to convict plaintiff,  on ground that habeas relief



            is exclusive remedy,  per Preiser v. Rodriguez,  411 U.S. 475
                                      _______    _________



            (1973)).   Moreover, the claim for  injunctive relief against



            the  court reporter is moot  since it is  undisputed that the



            suppression hearing tape had been lost and that the defendant
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            court  reporter turned the voir  dire hearing tape  over to a
                                       ____  ____ _______ ____



            different  court  reporter  who  prepared  and  delivered  to



            Rodriguez a transcript based on the latter tape.  See DeLancy
                                                              ___ _______



            v.  Caldwell,  741  F.2d 1246,  1247  (10th  Cir. 1984)  (per
                ________



            curiam)   (   1983  claim  for  injunctive  relief  directing



            preparation of trial transcripts mooted because defendant had



            provided transcripts to plaintiff after suit was filed). 



                      As the premature section  1983 claims were properly



            dismissed,  we direct  that  the district  court judgment  be



            modified  so as to dismiss  both the section  1983 claims and



            the pendent state-law claims against all defendants,  without
                                                                  _______



            prejudice.  No costs.
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                      So ordered.
                      So ordered.
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