

                    [NOT FOR PUBLICATION]

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT

                                         

No. 96-2209

                     MARK R. MERRIFIELD,

                    Plaintiff, Appellant,

                              v.

       JOHN DEMELLO, BARNSTABLE COUNTY SHERIFF, ET AL.,

                    Defendants, Appellees.
                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Reginald C. Lindsay, U.S. District Judge]                                                                 
                                         

                            Before

                    Torruella, Chief Judge,                                                      
               Campbell, Senior Circuit Judge,                                                         
                  and Boudin, Circuit Judge.                                                       
                                         

Mark R. Merrifield on brief pro se.                              
Joan M. LeGraw, Robert  S. Troy and Robert S. Troy and Associates,                                                                             
on  brief for  appellees,  John DeMello,  Barnstable County  Sheriff's
Dept.,  Robert  A. O'Leary,  John W.  Doane,  Victoria H.  Lowell, and
Barnstable County.
John  J. O'Brien, Jr. and Kirby, O'Brien &amp; von Rosenvinge on brief                                                                     
for appellees,  Nancy Blanchard,  Neil Nightingale and  The Barnstable
Police Department.
Scott  Harshbarger,  Attorney  General,   and  William  J.  Meade,                                                                             
Assistant Attorney General, on Motion to Dismiss Appeal or for Summary
Affirmance  and Memorandum  of Law  in Support  for appellees,  Philip
Rollins and J. Thomas Kirkman.

                                         

                        June 18, 1997
                                         

          Per  Curiam.    Pro  se appellant  Mark  Merrifield                                 

appeals from  the district court's grant  of summary judgment

against  him in  his 42  U.S.C.    1983 suit  against various

local  government defendants.   After  careful review  of the

record, we conclude that  most of Merrifield's contentions on

appeal  lack  merit.    Accordingly, we  affirm  judgment  in

defendants' favor  essentially for  the reasons given  in the

district court's orders issued on  December 19, 1995, and  on

July 2, 1996.   However, we affirm dismissal of  Merrifield's

claims against Barnstable town police officer Nancy Blanchard

for the reasons given below.  

          We note that  the record gives rise  to an isolated

issue of fact  as to whether  sworn statements or  affidavits                                               

were  submitted.   The  Fourth  Amendment  warrant clause  is

directed to sworn statements and it is not certain that sworn

statements, either written or oral, were submitted in support

of the  arrest warrant  which Officer Blanchard  obtained and

relied  on in  arresting  Merrifield on  September 17,  1992.

But, for reasons  that follow,  we do not  think any  purpose

would be served by a remand to explore  this factual issue in

further detail or to determine whether on the facts so found,

a constitutional  violation might exist (and,  if so, whether

any damages could be established).

     The reason why this is unnecessary is that the thrust of

Merrifield's   1983 action  is for malicious prosecution, not

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merely for wrongful arrest.   Merrifield asserts not  just an

absence of  sworn affidavits  to support the  arrest warrant,

but  that the  charges  against him  were  "bogus", that  the

warrant  was maliciously  obtained, and  that, in  effect, it

lacked any factual  basis.  A judgment  in Merrifield's favor

would  consequently imply  the invalidity  of his  subsequent

conviction  of  the  charges   for  which  he  was  arrested.

Accordingly,  since  Merrifield   has  not  shown  that   his

conviction  has already  been invalidated,  his suit  must be

dismissed.   See  Heck v. Humphrey, 512 U.S.  477, 486 (1994)                                              

(if  judgment in a   1983 plaintiff's favor would necessarily

imply the invalidity of his conviction, the complaint must be

dismissed  unless  the  plaintiff can  demonstrate  that  the

conviction has  already been  invalidated).   We note  that a

dismissal under Heck is without prejudice.  See Guzman-Rivera                                                                         

v. Rivera-Cruz, 29 F.3d 3, 6 (1st Cir. 1994).                          

          During  the course  of  this action,  the  district

court dismissed  two  defendants  --  Clerk  Magistrate  Omer

Chartrand and defense counsel John Biega -- without prejudice

since they had never been served with process.  We modify the

judgment in their favor to be with prejudice since Merrifield                                              

could  not bring  suit  against them  at  all under     1983.

Chartrand was absolutely immune for his decision to issue the

arrest  warrant.   See Scott  v. Dixon,  720 F.2d  1542, 1546                                                  

(11th Cir. 1983), cert. denied, 469 U.S. 832 (1984); see also                                                                         

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Boyer  v. City  of Washington,  971 F.2d  100, 102  (8th Cir.                                         

1992)  (per  curiam)  (dictum);  Torres  Ramirez v.  Bermudez                                                                         

Garcia, 898 F.2d  224, 228 (1st Cir.  1990) (by implication).                  

Since defendant  John Biega was appointed by  the state court

to  defend Merrifield  against the  criminal  charges against

him, his actions did not constitute state action under   1983

and he could  not be sued.   See Polk  County v. Dodson,  454                                                                   

U.S. 312, 325 (1981).

          Affirmed.   We  modify the  judgment  of  dismissal                                                                         

against defendant Nancy Blanchard to be without prejudice and                                                                         

the judgment of  dismissal against defendants  Omer Chartrand                                                                         

and John Biega to be with prejudice.                                                   

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