
USCA1 Opinion

	




          October 5, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                ________   ___                                         -3-
