
USCA1 Opinion

	




          January 3, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1929                                               RONALD FORSTER,                                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. Martin F. Loughlin, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge.                                         ___________                         Torruella and Selya, Circuit Judges.                                              ______________                                 ___________________               Ronald Forster on brief pro se.               ______________               Jeffrey R.  Howard,  Attorney General,  and  Christopher  P.               __________________                           _______________          Reid, Attorney, Civil Bureau, on brief for appellees.          ____                                  __________________                                  __________________                      Per Curiam.   Plaintiff appellant, pro  se, appeals                      __________            the dismissal of his civil rights complaint under 28 U.S.C.              1915(d).  Plaintiff  is currently serving a 7-1/2  year to 15            year sentence in the New Hampshire State Prison following his            guilty plea to crimes he describes only as sex offenses.  The            gist  of plaintiff's  complaint, brought  under  42 U.S.C.               1983,   is  that  New   Hampshire's  sex  offense   laws  are            unconstitutional  because  they  permit  a  defendant  to  be            convicted  solely  on  the  uncorroborated testimony  of  the            victim.     Plaintiff  claims   that  the   state's  statutes            facilitate wrongful convictions on insufficient evidence.  He            states  that  evidence in  his  own case  was  falsified, and            implies  that the  state's laws  were at  fault. He  names as            defendants  the  State  of New  Hampshire,  the  Hillsborough            Police   Department,   various  state,   county   and  police            officials, a law firm and  two attorneys who represented  him            in his  criminal case.   Defendants are variously  accused of            wrongful activities  connected to enforcement  of the state's            laws  generally,   or  to   plaintiff's   criminal  case   in            particular.   The  complaint requests  both  equitable relief            (release from confinement) and damages.                      Because 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); Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (to                     _______    ________                                         -2-            avoid  wasteful litigation,  under    1915(d)  the court  may            dismiss  claims  which are  based  on  indisputably meritless            legal  theories  or  delusional  factual  scenarios).     The            magistrate found that the complaint failed to state a legally            cognizable claim under 42 U.S.C.   1983 for  several reasons,            and  ordered  plaintiff  to  file  an  amendment  curing  the            defects,  or  face  dismissal of  the  complaint.   Plaintiff            objected to  the report,  stating in part  that he  wished to            proceed under 42 U.S.C.   1985(3), not   1983.   The district            judge reviewed  the  matter, and  affirmed  the  magistrate's            order.  Plaintiff  then complied with the order  by filing an            amendment under 42 U.S.C.   1985(3).  The amendment, too, was            legally deficient,  but the magistrate afforded plaintiff yet            another  opportunity  to  amend.    When  plaintiff's  second            amendment failed to  cure any of  the defects, the  complaint            was dismissed.    See Forte v.  Sullivan, 935 F.2d 1,  3 (1st                              ___ _____     ________            Cir. 1991) (a district court  may dismiss a complaint under              1915(d) following notice  and an  opportunity to  amend in  a            manner that would  satisfy the procedural safeguards  of Fed.            R. Civ. P. 12(b)(6)).  We affirm.                        The gravamen  of the complaint is an  attack on the            validity  of plaintiff's conviction.  The district court thus            correctly held  that the  sole available  federal remedy  for            obtaining  release from  state custody  is a  writ  of habeas            corpus, which a plaintiff may seek after exhausting his state                                         -3-            remedies.  Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973).                       _______    _________            As plaintiff's amendments  showed that he had  yet to exhaust            his state  remedies,  and was  simultaneously pursuing  state            habeas relief, dismissal of plaintiff's equitable claims  was            required.  Preiser, 411 U.S. at 490-94, 500.                              _______                      As  to the  damages  claims,  they  were  correctly            dismissed  because, soley as  a matter  of federal  law, they            failed  to state  claims legally  cognizable  in the  federal            forum. Though  the pleading  is vague,  its overriding  legal            defects  are clear.  Cf. Bettencourt v. Board of Registration                                 ___ ___________    _____________________            in Medicine, 904  F.2d 772 (1st Cir.  1990) (although Deakins            ___________                                           _______            v.  Monaghan, 484  U.S. 193  (1988)  ordinarily requires  the                ________            court  to  stay  federal  monetary  claims  which  cannot  be            asserted in  a parallel  state proceeding,  dismissal may  be            affirmed where  there are adequate independent  legal grounds            for the dismissal).                           As the  district  court held,  first,  the  claims            asserted  under      1985(3)  cannot   be  sustained  because            plaintiff  does not  allege, but  actually  denies, that  the            defendants' actions  were directed against a protected class.            See Bray v. Alexandria Women's  Health Clinic, 113 S. Ct. 753                ____    _________________________________            (1993).  Second, to the  extent that plaintiff is complaining            of  constitutional   deprivations   caused   by   the   state            defendants' misuse of  state laws and procedures, there is no            cause of action under   1983 until and unless the state fails                                         -4-            to  provide a  suitable postdeprivation  remedy.   Hudson  v.                                                               ______            Palmer,  468  U.S.  517,  533  (1984).    Third,  plaintiff's            ______            separate claims  against  his private  attorneys for  alleged            malpractice  are not cognizable under  1983 because there are            no facts  suggesting that their  conduct was under  "color of            state  law."   Polk County  v.  Dodson, 454  U.S. 312  (1981)                           ___________      ______            (public defender is not 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).  Finally,  to the                   _____________            extent that  plaintiff seeks to  ground a cause of  action on            the  alleged  constitutional insufficiency  of  a state  rule            allowing convictions based  solely on victims' uncorroborated            testimony, he has no standing to challenge the practice under              1983.   Plaintiff states that his own  conviction was based            on his guilty plea, not some insufficient quantum of evidence            introduced at  a trial.   See Adams  v. Watson,  No. 93-1068,                                      ___ _____     ______            1993  WL 497387  at  *2  (1st  Cir.  Dec.  8,  1993)  (as  an            "irreducible   constitutional  minimum,"   the  doctrine   of            standing  requires that the  plaintiff show an  actual injury            caused by the challenged illegality and plaintiff must have a            direct stake in the outcome of the dispute) (citing cases).                       For  the  reasons  stated,  the judgment  below  is            affirmed.     As   plaintiff  suffered   no  prejudice   from            ________                                         -5-            defendant's late filing,  plaintiff's motions challenging the            timeliness of defendant's brief are denied.                                                       ______                                         -6-
