
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          May 6, 1994           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
