October 5, 1994
                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 94-1796

                      JEROME E. CASSELL,

                    Plaintiff, Appellant,

                              v.

                         NANCY OBER,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF NEW HAMPSHIRE

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

                                         

                            Before

                     Selya, Cyr and Stahl,
                       Circuit Judges.
                                     

                                         

Jerome  E.  Cassell  on  Motion For  Stay  Or  Injunction  Pending
                   
Appeal, pro se.
David W. Immen on Motion To Dismiss for appellee.
              

                                         

                                         

          Per  Curiam.     We  have  before  us  a motion  by
                     

appellant  denominated  "motion  for  a  stay  or  injunction

pending appeal," and a  cross-motion by defendant "to dismiss

the appeal."  We construe these filings as cross-motions  for

summary disposition.

          Appellant Cassell was convicted  in a New Hampshire

state court of  felonious sexual assault.  While his criminal

conviction  was pending  on  direct appeal,  he brought  this

action  for damages under 42 U.S.C.   1983, alleging that the

defendant had  conspired with the police  to falsify evidence

and otherwise cause the  plaintiff to be wrongfully convicted

in the state case.   The district court initially determined,

on  a preliminary review of  the complaint under  28 U.S.C.  

1915, and  circuit precedent, that the  federal damages claim

should be stayed pending exhaustion by plaintiff of his state

remedies.   Shortly  thereafter, however,  the Supreme  Court

resolved  a conflict among the  circuits by ruling  that "a  

1983  cause   of  action  for  damages   attributable  to  an

unconstitutional  conviction  does   not  accrue  until   the
                                                

conviction  . . . has  been invalidated."   Heck v. Humphrey,
                                                            

114  S. Ct.  2364,  2373 (1994)  (emphasis  added); see  also
                                                             

Guzman-Rivera v.  Rivera-Cruz, 29 F.3d 3, 5  (1st Cir. 1994).
                             

The district court then correctly determined that application

of  the Supreme  Court's decision  required the  dismissal of

plaintiff's claim as premature.

          Plaintiff's  motion indicates  that he  is somewhat

confused  about the  effect of  the  dismissal.   We explain,

first,  that plaintiff  is  not prejudiced  by the  dismissal

because  it does not prevent  him from later  filing a proper

and timely complaint  for damages should he  first succeed in

having his conviction reversed on direct appeal, expunged, or

otherwise declared  invalid by a tribunal  authorized to make

such a determination.  Id.  Second, plaintiff is incorrect in
                          

assuming that the dismissal  violates this court's mandate in

an earlier appeal filed by plaintiff in another case.  Appeal

no. 93-16O7 (one of  three consolidated appeals) involved the

dismissal,  by  a different  district  judge,  of a  separate

lawsuit in  which plaintiff  had named  different defendants.

Our  remand of  that  case for  further  consideration as  to

whether some  of the claims  should be stayed,  also predated

the  Supreme  Court's decision  in Heck.    The effect  of an
                                       

intervening Supreme  Court decision on claims  pending in the

district  court at  the time  of the  decision is  a question

committed  in  the first  instance  to  the particular  judge

presiding over each case.

          Finding no substantial  question presented, and for

the reasons  articulated in  the district court's  order, the

judgment below is affirmed.  See Loc. R. 27.1.  
                                

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