
USCA1 Opinion

	




          April 26, 1994        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                _____________________          No. 93-1557                                  JEROME E. CASSELL,                                Plaintiff, Appellant,                                          v.                                BARRY OSBORN, ET AL.,                                Defendants, Appellees.                                  _________________          No. 93-1607                                  JEROME E. CASSELL,                                Plaintiff, Appellant,                                          v.                           STATE OF NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees,                                  _________________          No. 93-2079                                  JEROME E. CASSELL,                                Plaintiff, Appellant,                                          v.                                   LINCOLN SOLDATI,                                 Defendant, Appellee.                                  _________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                    [Hon. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                            Selya and Cyr, Circuit Judges.                                           ______________                                  _________________               Jerome E. Cassell on brief pro se.               _________________               Jeffrey R. Howard, Attorney General, and Christopher P. Reid               _________________                        ___________________          on  brief for appellees, Barry Osborn, State of New Hampshire and          Governor Steven Merrill.               Charles  G. Douglas, III, and Douglas & Douglas on brief for               ________________________      _________________          appellee Lincoln Soldati.                                 ___________________                                 ___________________                    Per Curiam.  Plaintiff James E. Cassell, appeals pro se                    __________                                       ___ __          from the  district court's dismissal  of three civil  rights com-          plaints  under 28 U.S.C.   1915(d).  The appeal raises a prelimi-          nary question as to the proper disposition of infirm civil rights          monetary  claims  filed during  the  pendency  of parallel  state          criminal proceedings.                    Plaintiff was convicted in  a New Hampshire state court          of  aggravated sexual assault on August 28, 1992.  He filed three          civil rights  complaints during the pendency of  this state post-          trial criminal  proceedings and appeal.1   Each complaint alleges          the wrongfulness  of the state conviction  and asserts violations          of 42 U.S.C.   1983, or 42 U.S.C.   1985(3), or both.  Two of the          suits seek equitable relief and damages, the  other only damages.          The complaints  are rambling,  verbose, and difficult  to follow,          but to orient  the ensuing discussion,  we provide the  following          recap  of some  of the  allegations found  in the  complaints and          related filings.2                                        ____________________               1We are  informed that  the plaintiff's appeal  is currently          pending before the New Hampshire Supreme Court.  Although neither          party has requested a  stay on this basis, we  consider the issue          sua sponte because  of the possible impact  of a decision  on the          ___ ______          proper workings of our  federal system.  Cf. Granberry  v. Greer,                                                   ___ _________     _____          481 U.S. 129,  134-35 (1986) (if the  State fails to assert  non-          exhaustion  of remedies  in  a habeas  action,  the court  should          decide whether comity and  federalism interests are better served          by reaching the merits or by requiring exhaustion).               2Plaintiff's filings indicate that,  at least initially,  he          did  not grasp  the  functional difference  between a  complaint,          denominated  as such,  and  the numerous  other  papers he  filed          including "addenda," "memoranda" and  "exhibits."  To clarify his          claims,  we  perused his  other filings.    The amount  of paper,          number  of filings,  and repetitive irrelevancies,  are daunting,          even by  pro se standards.   Our  review in no  way prevents  the                   ___ __                    No. 93-1607.  Filed  on November 6, 1992, the complaint          names as  defendants a parole  officer, two police  officers, the          complaining  witness  in  plaintiff's  state criminal  case,  and          plaintiff's  state trial  counsel.   The gist  is that  the state          officers  intimidated  the  complaining  witness,  and ultimately          conspired  with her,  to  falsely accuse  and wrongfully  convict          plaintiff  of  aggravated  sexual  assault.    Plaintiff's  trial          counsel is  accused of  ineffective assistance,  incompetence and          malpractice.                    No. 93-1557.   Filed on April 13,  1993, this complaint          names as defendants the State's governor and a county commission-          er,  in their official capacities, a  local police department and          unidentified officers  thereof, in both their  official and indi-          vidual  capacities, and,  again, plaintiff's  trial counsel.   It          alleges that New Hampshire's  sexual assault laws are unconstitu-          tional because they are written in a way which encourages consti-          tutional violations, conspiracies to suborn  perjury and wrongful          convictions;  and  that  the  state  defendants administered  and          enforced  the laws  with  extreme indifference  thereby depriving          plaintiff of due process and equal protection of the laws.                    No.  93-2079.   This complaint  was filed  on August 3,          1993, after  the district  court dismissed plaintiff's  first two          complaints.   It names, as the sole defendant, the prosecutor who          represented the State at plaintiff's criminal trial.  It contains                                        ____________________          district court  from exercising its  discretion in  this case  to          fairly  restrict  the number  and length  of  the papers  it will          review.                                          4          44 paragraphs and 234 pages of exhibits.  Their crux  is that the          prosecutor negligently relied upon witness statements obtained by          the police,  presented perjured testimony  to the jury,  and made          prejudicial remarks  during trial.   On appeal  plaintiff charac-          terizes this complaint as  an attack on the prosecutor's  role as          an investigator  and implies that the prosecutor was negligent in          giving legal advice to the police officers.                                  Proceedings Below                                  Proceedings Below                    Since  plaintiff  sought  leave  to  proceed  in  forma          pauperis, the  magistrate conducted a preliminary  review of each          complaint under 28  U.S.C.   1915(d).  As  to the first two,  the          magistrate construed  the equitable claims  as requesting  habeas          relief, and recommended dismissal unless plaintiff showed that he          had exhausted his state remedies.   The magistrate also  observed          a  variety of  deficiencies  in the  statements  of the  monetary          claims.  Following the  usual procedure in such  cases, plaintiff          was  given an  opportunity to  amend the  complaints to  cure the          defects outlined, 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).  As                 ______    _____          to the third complaint,  the magistrate recommended dismissal, on          the grounds of absolute prosecutorial immunity, without affording          an  opportunity to amend because the complaint showed on its face          that it was based on an indisputably meritless legal theory.  See                                                                        ___          Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (under   1915(d)          _______    ________          the  court may  dismiss  claims based  on indisputably  meritless                                          5          legal theories or delusional factual scenarios).                    Plaintiff's responses  to  the magistrate's  first  two          reports included  exhibits which  suggested, for the  first time,          that  the state  criminal prosecution  remained pending.3   While          the district court was thus aware of the possible pendency of the          state case when it undertook its  review, it did not focus on the          effect a  decision on the monetary claims might have in the state          case.4   After  de novo  review, the  district court  adopted the          magistrate's  reports and  recommendations for  dismissal on  the          various other legal grounds.                                      Discussion                                      Discussion                    The court's dismissal of plaintiff's   1983 claims  for          equitable  relief must be affirmed.   These claims  have at their          root an attack on the  validity of the state conviction and  seek          plaintiff's release from confinement.   Consequently, they may be          pursued only by petition  for habeas corpus, after  the plaintiff          has exhausted his state remedies.  Preiser v. Rodriguez, 411 U.S.                                             _______    _________                                        ____________________               3Plaintiff  responded to  the magistrate's  first  report by          filing  an  amendment, with  exhibits,  to  the first  complaint,          followed  by a series of lengthy addenda.   He chose not to amend          his second complaint,  but filed a lengthy  objection with exhib-          its.  He also objected to the recommended dismissal of his  third          complaint, filing additional exhibits which contained papers from          the pending criminal proceedings.               4The  court also  had before  it a  motion by  plaintiff for          "federal interdiction" in the state proceedings, which was denied          under Younger  v. Harris, 401 U.S. 37 (1971).  This ruling is not                _______     ______          challenged on appeal.                                          6          475,  490 (1973).5   A  section 1983  action may  not be  used to          circumvent the  exhaustion  requirement's important  function  of          avoiding federal-state friction  by permitting  state courts  the          first opportunity  to correct  their constitutional errors.   See                                                                        ___          Guerro v. Mulhearn, 498 F.2d 1249, 1251-52 (1st Cir. 1974).          ______    ________                    Disposition  of  the   damages  claims,  too,  requires          consideration  of the effect the court's decision may have in the          pending state  proceedings.   "[A] suit for  money damages  under          section 1983 may also have a substantially disruptive effect upon          contemporary state criminal proceedings, and  may . . . undermine          the integrity of the writ of habeas corpus."  Id. at 1252.   When                                                        ___          there  is "no  question that  the [complaint]  allege[s] injuries          under  federal law  sufficient  to justify  the District  Court's          retention of  jurisdiction," civil  rights monetary claims  which          cannot be  asserted in a parallel state proceeding ordinarily are                                        ____________________               5We  glean  in  plaintiff's  complaints  and  amendments  no          suggestion  of  the rare  circumstances  that  might  lead to  an          exception to  the habeas exhaustion requirement.   See Granberry,                                                             ___ _________          481 U.S. at  131 (discussing exceptional circumstances).   In any          event, plaintiff's  exhibits below  indicate that in  addition to          these cases, he  also filed a separate suit for  habeas relief in          the district  court.   That  petition is  not before  us in  this          appeal, and we express no opinion on its merits.               In  general, however, we note that when a plaintiff is given          an opportunity  to amend  habeas claims mistakenly  brought under            1983,  it is  advisable to  require him  to replead  his habeas          claims on a  form petition.   See Rules  Governing   2254  Cases,                                        ___          Rule 2.  Although  no universal palliative for pro  se confusion,                                                         ___  __          the  form petition assists both  the petitioner and  the court by          guiding the petitioner toward an orderly statement of claims, and          the status of the  state proceedings.  The habeas claims may then          be readily identified for processing  under the rules relating to          habeas petitions,  including  those relating  to habeas  appeals.          Where  there are  also  separate monetary  claims, the  court may          simultaneously  consider the common  issues.  See  Guerro v. Mul-                                                        ___  ______    ____          hearn, 498 F.2d 1249, 1254 n.15 (1st Cir. 1974).          _____                                          7          stayed pending completion  of the  state case.   Deakins v.  Mon-                                                           _______     ____          aghan, 484 U.S. 193, 204 (1988).  A stay allows the state case to          _____          go forward "without interference  from its federal sibling, while          enforcing the duty of federal courts 'to assume jurisdiction were          jurisdiction properly  exists.'"   Id. at 202-03  (citation omit-                                             ___          ted).   Preferring a stay  to a dismissal  without prejudice also          avoids the possibility  of a  later time bar  under the  borrowed          statute of limitations.  Id. at 203 n.7.                                   ___                    In this case, however, we are met with three complaints          containing various  types and degrees of defects  in their asser-          tions of federal civil  rights monetary claims.  Under  28 U.S.C.            1915(d),  a district court has authority to dismiss an in forma          pauperis complaint "if  satisfied that the action is frivolous or          malicious."   "[A] litigant whose filing fees and court costs are          assumed by the public, unlike a paying litigant, lacks an econom-          ic  incentive to  refrain  from filing  frivolous, malicious,  or          repetitive  lawsuits."   Neitzke, 490  U.S. at  324.   To prevent                                   _______          abuse, and to spare prospective defendants the expense of answer-          ing such  complaints, the district court, acting  sua sponte, may                                                            ___ ______          dismiss claims based on  an "indisputably meritless legal theory"          or "clearly baseless" factual allegations.  Id. at 327; Denton v.                                                      ___         ______          Hernandez, 112 S. Ct. 1728, 1732-33 (1992).          _________                    During the pendency of parallel state criminal proceed-          ings, there is  as much  potential for abuse  from the filing  of          frivolous federal complaints  as at  any other time.   There  may          even be  an added danger, as the state court defendant may seek a                                          8          federal  forum solely to gain  a tactical advantage  or to harass          the  prosecuting  authorities  and witnesses.    Section  1915(d)          permits the district court to intercept and dismiss frivolous and          malicious claims filed at such time, or any time.  The preference          expressed in Deakins, 484  U.S. at 204, for staying,  rather than                       _______          dismissing, cognizable federal  claims that allege  facts "suffi-          cient to justify the District Court's retention of jurisdiction,"          does  not come into play  where the claims  asserted are patently          frivolous.6                    Where a complaint filed under   1915(d) appears legally          deficient, though perhaps  not frivolous "in the  hard core sense          described in Neitzke,"  we have held that a  court may proceed to                       _______          decide  whether it  should be  dismissed for  failure to  state a          claim, after affording the  plaintiff the "practical  protections          typically given paying plaintiffs under Fed. R. Civ. P. 12(b)(6).          Purvis, 929 F.2d at 826-27; Forte, 935 F.2d at 3  (same).  Comity          ______                      _____          concerns may  be implicated in such  decisions, however, particu-          larly when  the complaint challenges a  state criminal conviction          which has not yet become final.  See Guerro, 498 F.2d at 1255.                                           ___ ______                    Should the district court's decision require a determi-          nation of matters at  issue in a pending state  criminal proceed-          ing, a stay is the only option, since "the potential for federal-                                        ____________________               6Ordinarily,  a  dismissal  for  "frivolousness"  would  not          preclude  issues that might be raised in the state court proceed-          ing.   In the  unlikely event  that such  a case  arose, however,          caution  would  be indicated  for  the  reasons suggested  below,          especially  where it was intended  that the dismissal  be "on the          merits."  See Denton, 112 S. Ct. at 1734 (discussing res judicata                    ___ ______                                 ___ ________          effect of   1915(d) dismissal).                                          9          state friction is obvious."  Deakins, 484 U.S. at 208 (White,  J.                                       _______          concurring, quoting Guerro, 498 F.2d at 1253).  Conversely, where                              ______          the decision will not affect issues which should first be decided          by the state court,  the district court need not  delay its deci-          sion.   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)  (civil rights          ____________          claims which cannot be asserted in parallel pending state licens-          ing  case normally  should  be stayed,  but where  quasi-judicial          immunity  and  sovereign  immunity  barred  consideration of  the          claims  by  the federal  court,  they  were properly  dismissed);          Williams  v. Hepting,  844 F.2d  138, 143-45  (3d  Cir.) (staying          ________     _______          certain claims and simultaneously, without  discussion, affirming          dismissal of  other claims on grounds of witness immunity), cert.                                                                      ____          denied,  488 U.S. 851 (1988); Bressman v. Farrier, 900 F.2d 1305,          ______                        ________    _______          1309 (8th Cir. 1990) (staying certain claims but dismissing time-          barred claims), cert. denied, 498 U.S. 1126 (1991).                          ____  ______                    In pro se cases, accurate identification and comparison                       ___ __          of the issues in the federal and state proceedings may  be diffi-          cult.   To  avoid  conflict, caution  is  indicated whenever  the          ground for decision is  one that ordinarily might be  asserted as          res  judicata in a state  criminal proceeding.   See Deakins, 484          ___  ________                                    ___ _______          U.S.  at 208;  Guerro, 498  F.2d  at 1253.   In  such cases,  the                         ______          district  court may  exercise its  discretion under    1915(c) to          order service on the defendants or otherwise obtain assistance in                                          10          pinpointing the  issues and the status of  the state proceedings,          or  it may choose,  sua sponte, to  order a stay  until the state                              ___ ______          proceedings are  terminated.  Cf.  Granberry, 481 U.S.  at 133-35                                        ___  _________          (affirming similar discretion, sua sponte, to  require exhaustion                                         ___ ______          of  habeas remedies even where defendant waives the defense).  In          the  event the  court decides  to stay  the monetary  claims, the          habeas and   1983 claims may be  considered simultaneously at the          conclusion  of the  state  court proceedings,  thus reducing  the          burden on  the parties and the  court.  Guerro, 498  F.2d at 1254                                                  ______          n.15.                    Applying  these  principles  here,  there  seems little          question that  most of plaintiff's monetary  claims were properly          dismissed, rather than stayed, since only one species of monetary          claim is not based on an "indisputably meritless" legal theory as          a  matter of  federal law.   Dismissals on  this basis  would not          implicate any issue in the state criminal proceedings.                    The claims plaintiff asserts under    1985(3) cannot be          sustained because  there is  no showing that  defendants' actions          were directed against a  protected class as required to  found an          action 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  barred because  there  are  no  facts          suggesting that his conduct was under "color of state law."  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                                          11          not act under  "color of state law"), cert.  denied, 479 U.S. 828                                                ____   ______          (1986).  The claims against the prosecuting witness also fail for          lack  of any showing  that she acted under  "color of state law,"          and because her trial testimony is entitled to absolute immunity.          See Briscoe v. LaHue, 460 U.S.  325, 329-36 (1983).  The monetary          ___ _______    _____          claims  against  state officials,  in  their official  capacities          only, 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 claims against the State's prosecuting attorney are barred by          the  federal doctrine  of absolute  prosecutorial immunity.   See                                                                        ___          Burns  v. Reed, 500 U.S.  478, ___ (1991)  (prosecutors are abso-          _____     ____          lutely immune from   1983 liability for conduct in initiating and          presenting  state's case  insofar  as the  conduct is  intimately          associated with the judicial phase of the  criminal process); see                                                                        ___          also Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616 (1993) (quali-          ____ _______    ___________          fied immunity extends to  investigatory functions and administra-          tive functions).  Although  some of the claims against  the state          prosecutor  arguably challenge conduct  covered only by qualified          immunity, they are infirm for the additional reason that they are          grounded in alleged negligence.   Mere negligence is insufficient          to implicate  due process protections.   Davidson v.  Cannon, 474                                                   ________     ______          U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327 (1986).7                                _______    ________                    The  dismissal of  plaintiff's monetary  claims against                                        ____________________               7Although  the  complaint contains  boilerplate "conspiracy"          allegations,  the only specific conduct alleged in it, and in the          numerous exhibits attached, reveals that the claims are based, at          most, on simple negligence.                                          12          the state  officers in their individual  capacities (No. 93-1607)          is  more problematic.   Plaintiff's  "amendment" attempts  to tie          these claims to a challenge  to the state's criminal law, and  to          the same facts and  legal arguments he is advancing  in the state          case.   The court's dismissal was  broadly based on a  failure to          state sufficient  facts to sustain  a claim, a  decision arguably          susceptible  of being raised as  an estoppel in  the state court.          Plaintiff's  disorganized presentation  makes it  difficult accu-          rately  to compare  the issues in  the two  proceedings or  to be          certain whether there  are alternate grounds  for dismissal.   We          therefore  think the  more efficient  course is  to remand  these          claims to the district court for reconsideration, consistent with          this opinion,  as  to  whether their  legal  sufficiency  can  be          determined without  in  any way  affecting  issues in  the  state          criminal case, or whether  these claims should be stayed  pending          completion of the state court proceedings.                    Accordingly, the judgment dismissing the  complaints in          93-1557 and  93-2079 is  affirmed.   The judgment  dismissing the                                   ________          complaint in 93-1607 is affirmed in part and vacated in part, and                                  ________________     _______________          the  case  is remanded  to  the  district court  for  proceedings          consistent with this opinion.                                          13
