
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          January 10, 1996      [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE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.                                                                                      ____________________                     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.                                                                                      ____________________                                                                                      ____________________                      Per Curiam.  Jose Rodriguez appeals from a district                      __________            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-                       _______ _________    ___ _____________     _______            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                                                       ____  ______            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);                                         -2-            Bell  v. Peters, 33 F.3d 18,  19 (7th Cir. 1994) (per curiam)            ____     ______            (vacating,  under Heck, a  judgment on the  merits of section                              ____            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                           ___________________    _____________            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                                            ____________________                 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                      ___ ___ ______________    ________________                                         -3-                                          3            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            ______                                    ______                                            ____________________            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).              ____________                                         -4-                                          4            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            ___________ _______ ____            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.            _________   __ _____                      So ordered.                      So ordered.                      __ _______                                         -5-                                          5
