
USCA1 Opinion

	




          September 3, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2225                                  RASHID A. PIGOTT,                                Plaintiff, Appellant,                                          v.                               ELIZABETH VEGA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Rashid A. Pigott on brief pro se.            ________________            Scott   Harshbarger,  Attorney   General,  and  Ellyn   H.  Lazar,            ___________________                             _________________        Assistant Attorney General, on brief for appellees.                                 ____________________                                 ____________________                 Per Curiam.   Pro se plaintiff  Rashid Pigott appeals  a                 __________    ___ __            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                                            ____________________               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            _______     _____________                                            ____________________               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                                ________   ___            modify the  dismissal to be  without prejudice.   See Guzman-                                         _______ _________    ___ _______            Rivera v. Rivera-Cruz, 29 F.3d 3, 6 (1st Cir. 1994).                  ______    ___________                                            ____________________               3Pigott  also contends  that defendant Leary  maintained a               3            policy  of deliberate  indifference to  the rights of  pro se                                                                   ___ __            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.                                         -4-
