Pratt v. State of NH

USCA1 Opinion

May 6, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

___________________

No. 93-2068

RAYMOND E. PRATT, JR.,

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. Joseph A. DiClerico, U.S. District Judge]

___________________

Before

Torruella, Boudin and Stahl,

Circuit Judges.

______________

___________________

Raymond E. Pratt on brief pro se.

________________

Jeffrey R. Howard, Attorney General, and Daniel J. Mullen,

__________________ ________________

Senior Assistant Attorney General, Civil Bureau, on brief for

appellees.

__________________

__________________

Per Curiam. Plaintiff, pro se, appeals the

___________ ___ __

dismissal of his civil rights complaint for failure to state

a claim under 42 U.S.C. 1983, 1985(3). Plaintiff is

currently incarcerated at the New Hampshire State Prison

following his conviction for certain sex offenses. He

challenges the validity of his conviction, claiming that New

Hampshire's sexual assault laws are unconstitutional because

they permit a conviction to rest solely on the alleged

victim's uncorroborated testimony that a crime occurred.

Plaintiff seeks both equitable and monetary relief. He names

as defendants the State of New Hampshire, the Governor, the

Cheshire County Commissioner, the Keene Police Department and

his own trial attorney.

Since plaintiff is proceeding in forma pauperis,

the magistrate undertook a preliminary review of the

complaint prior to completing service. See 28 U.S.C.

___

1915(d). The magistrate construed the complaint as seeking

both habeas relief and damages. He identified several

deficiencies in the statement of the claims and afforded

plaintiff an opportunity to amend the complaint to cure the

defects, or face a recommended dismissal for failure to state

a claim. See Forte v. Sullivan, 935 F.2d 1, 3 (1st Cir.

___ _____ ________

1991); Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991).

______ _____

Plaintiff filed an objection to the report, and an amended

complaint. The amendments added factual allegations about

-2-

plaintiff's criminal case but did not cure the defects the

magistrate had noted in his 1983 claims. Plaintiff

insisted that he did not intend his equitable claims as a

habeas petition; and emphasized that he intended to assert

claims under both sections 1983 and 1985(3). The magistrate

once again reviewed the complaint, observing additional

deficiencies in the claims under 1985, and afforded

plaintiff yet another opportunity to amend. Plaintiff did

not file a second amendment, but again objected to the

magistrate's report. After reviewing the objection, the

district court accepted the magistrate's report and

recommendation, dismissing the complaint.

Plaintiff states that he is currently pursuing a

motion to set aside the verdict and for a new trial in his

state criminal case, as well as a state habeas petition.1

It is thus apparent that his equitable claims were properly

dismissed as an attempt to circumvent the federal habeas

corpus exhaustion rule. Guerro v. Mulhearn, 498 F.2d 1249

______ ________

(1st Cir. 1974). Habeas corpus is the sole avenue for

seeking release from confinement based on an allegedly

____________________

1. Plaintiff informed the district court of the pendency of

his state habeas petition in his objection to the

magistrate's initial report and in his amended complaint. In

this court he has filed a "Motion to Introduce Supporting

Evidence" in which he additionally alleges the pendency of a

motion to set aside the verdict and for a new trial in his

state criminal case.

-3-

unlawful conviction. Preiser v. Rodriguez, 411 U.S. 475 , 490

_______ _________

(1973).

While ordinarily civil rights monetary claims are

stayed during the pendency of parallel state criminal

proceedings, they, too, may be dismissed for failure to state

a claim where the ground for dismissal does not affect issues

that must be first decided by the state court. Accord Duncan

______ ______

v. Gunter, 15 F.3d 989 (10th Cir. 1994) (affirming dismissal

______

on grounds which need not be first decided in state

proceedings); cf. Bettencourt v. Board of Registration in

___ ___________ _________________________

Medicine, 904 F.2d 772, 781 (1st Cir. 1990) (observing that

________

Deakins v. Monaghan, 484 U.S. 193 (1988) ordinarily requires

_______ ________

a stay of 1983 monetary claims which cannot be asserted in

parallel state licensing proceeding, but affirming dismissal

of claims where there were independent legal grounds for

dismissal).

Plaintiff's monetary claims were properly dismissed

for reasons which do not encroach upon any issues that may be

raised in the state proceedings. The 1985(3) claims are

infirm because plaintiff alleges no facts showing that he is

a member of a protected class, a requirement to found a claim

under that statute. See Bray v. Alexandria Women's Health

___ ____ __________________________

Clinic, 113 S. Ct. 753 (1993). The claims against

______

plaintiff's state trial attorney are infirm because there are

no facts suggesting that the attorney acted "under color of

-4-

state law," as required by 1983. Polk County v. Dodson,

____________ ______

454 U.S. 312 (1981) (public defender is not a state actor for

purposes of 1983); Malachowski v. Keene, 787 F.2d 704 , 710

___________ _____

(1st Cir.) (court-appointed private attorney does not act

under "color of state law"), cert. denied, 479 U.S. 828

_____________

(1986). The damages claims against the State and the

Governor, in his official capacity, are barred by Eleventh

Amendment immunity. See Will v. Michigan Dep't of State

___ ____ _________________________

Police, 491 U.S. 58 , 70-71 & n.10 (1989). The remaining

______

claims against the various state, county and local officials

are infirm because public officials are shielded from

liability for civil damages under 1983 "unless their

conduct was unreasonable in light of clearly established

law." Elder v. Holloway, 114 S. Ct. 1019 (1994); see also

_____ ________ ________

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified

______ __________

immunity extends to conduct which "does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known"). Aside from boilerplate

allegations of "conspiracy", plaintiff alleges only that

these officials followed established state law in prosecuting

the charges against him. Thus regardless of the outcome of

his constitutional challenge to the state's law, plaintiff

cannot recover civil damages from these officials for the

conduct alleged.

-5-

Accordingly, plaintiff's "Motion to Introduce

Supporting Evidence is granted, and the judgment below is

_______

affirmed.

_________

-6-