
USCA1 Opinion

	




          June 25, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2143                              JAMES PETER KYRICOPOULOS,                                Plaintiff, Appellant,                                          v.                          PHILLIP A. ROLLINS, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                  [Hon. George A. O'Toole, Jr., U.S. District Judge]                                                ___________________                                 ____________________                                        Before                                 Selya, Cyr and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            James Peter Kyricopoulos on brief pro se.            ________________________            Scott  Harshbarger,  Attorney  General, and  William  J. Duensing,            __________________                           ____________________        Assistant Attorney General, on brief for appellees  Philip A. Rollins,        District Attorney for the Cape and Islands, et al.            Pamela J.  Fitzgerald and  Brody, Hardoon,  Perkins  & Kesten,  on            _____________________      __________________________________        brief for appellees, Town of  Orleans Police Department and Lieutenant        Lucien Ozon.            Donald  K. Stern,  United  States Attorney,  Loretta  C.  Argrett,            ________________                             ____________________        Assistant  Attorney General,  and Gary  R.  Allen, Richard  Farber and                                          _______________  _______________        Curtis  C.  Pett,  Attorneys,  Tax Division,  Department  of  Justice,        ________________        Washington, D.C., on brief for federal appellee.            Carmen  L. Durso and  Lynne A.  Tatirosian on  brief for appellees            ________________      ____________________        John Perrone and Donald Jennings.                                 ____________________                                 ____________________                      Per  Curiam.   Appellant  James Peter  Kyricopoulos                      ___________            appeals from the dismissal  of his complaint, filed  under 42            U.S.C.    1983.  After  carefully reading the  record and the            parties'  briefs, we  affirm  the district  court's judgment,            except as  to Counts 1, 3,  4, 7, 9, and  10, for essentially            the reasons stated in the court's Memorandum and Order, dated            October 5, 1995.  We affirm the  dismissal of these counts on            different grounds.                      The  district court reasonably  construed Counts 1,            3,  4, 7,  9,  and 10  as  challenging, as  unconstitutional,            plaintiff's convictions  in three  state cases.   The court's            conclusion  that these  claims were time-barred,  however, is            mistaken.   In Heck v. Humphrey,  114 S. Ct. 2364 (1994), the                           ____    ________            Supreme Court held that "a   1983 cause of action for damages            attributable  to an  unconstitutional conviction  or sentence            does not  accrue until the  conviction or  sentence has  been            invalidated."  Id.  at 2374.   Therefore, if  "a judgment  in                           ___            favor of the plaintiff would necessarily imply the invalidity            of his conviction  or sentence . . . ,  the complaint must be            dismissed  unless the  plaintiff  can  demonstrate  that  the            conviction or sentence has already been invalidated."  Id. at                                                                   ___            2372.  Heck applies  retroactively to this case.   See, e.g.,                   ____                                        ___  ____            Boyd  v. Biggers,  31  F.3d 279,  282  n.2 (5th  Cir.  1994).            ____     _______            Because   none   of   plaintiff's   convictions   have   been                                         -3-            invalidated,  these  counts are  not cognizable  in a    1983            action.                      Notwithstanding  Heck, we  affirm the  dismissal of                                       ____            counts  1, 9  and  10 on  the  ground of  absolute  immunity,            insofar as they name as defendants various District Attorneys            and assistant district attorneys.   Here, Counts 1, 9  and 10            essentially  allege that  the prosecutors  conspired to  have            plaintiff falsely prosecuted.  Because  such conduct involves            the initiation  and presentation  of the state's  case, these            defendants  are  absolutely  immune  from  this  action   for            damages.   See Buckley v. Fitzsimmons, 509 U.S. 259, 269, 272                       ___ _______    ___________            (1993).                      Counts 4 and 7 make charges against two state trial            judges.  These judges are  absolutely immune from this action            in  the absence  of  any indication  that they  acted outside            their "judicial jurisdiction."   See Pierson v. Ray, 386 U.S.                                             ___ _______    ___            547, 553-54 (1967).  There is no such indication here.                      Finally,  we reject  the  remainder of  appellant's            arguments.    First, the  district  court did  not  abuse its            discretion  in  dismissing  the  complaint  before  plaintiff            conducted discovery.   Fed. R. Civ.  P. 12(b)(6) specifically            is  designed  to  streamline  litigation  and  do  away  with            "needless  discovery"  by  permitting  a  district  court  to            dismiss  a  claim where  relief on  that  claim could  not be            granted under any facts plaintiff could prove consistent with                                         -4-            his allegations.  Neitzke  v. Williams, 490 U.S.  319, 326-27                              _______     ________            (1989).    Further, plaintiff  had over  a  year in  which to            conduct discovery,  but did nothing.   Second, appellant must            raise issues regarding the district court judge's bias in the            first  instance in  the  district court.    See Thibeault  v.                                                        ___ _________            Square D. Co., 960 F.2d 239, 243 (1st Cir. 1992) (relief must            _____________            be  sought  in the  district court  before  asking for  it on            appeal).                      The judgment  of  the district  court is  affirmed.                                                                ________            Appellant's motion for summary disposition is denied.                                                          ______                                         -5-
