
USCA1 Opinion

	




          November 15, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1204                                   HERIBERTO PARRA,                                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. Paul J. Barbadoro, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Heriberto Parra on brief pro se.            _______________                                 ____________________                                 ____________________                      Per  Curiam.   Pro se  plaintiff, Heriberto  Parra,                      ___________    ___ __            appeals from  the dismissal  of  his civil  rights  complaint            under 28 U.S.C.    1915(d) for failure to state  a claim upon            which relief can be granted.   Having thoroughly reviewed the            record and  appellant's submissions on appeal,  we affirm the            dismissal.                      During  the  pendency  of this  appeal,  the United            States Supreme Court  decided Heck v. Humphrey, ___ U.S. ___,                                          ____    ________            114 S. Ct. 2364  (1994).  Heck applies retroactively  to this                                      ____            case. See, e.g., Boyd  v. Biggers, 31 F.3d 279, 282  n.2 (5th                  ___  ____  ____     _______            Cir. 1994).   In Heck, the Court held that "a   1983 cause of                             ____            action  for  damages  attributable  to   an  unconstitutional            conviction or  sentence does not accrue  until the conviction            or  sentence has  been  invalidated."  114  S. Ct.  at  2374.            Therefore, if  "a judgment  in favor  of the  plaintiff would            necessarily  imply  the  invalidity   of  his  conviction  or            sentence . . . ,  the complaint must be dismissed  unless the            plaintiff can demonstrate that the conviction or sentence has            already been invalidated." Id. at 2372.                                       ___                      Notwithstanding  the  Supreme  court's decision  in            Heck, we  affirm the dismissal of  appellant's claims against            ____            the prosecutors on the ground of absolute immunity.  We agree            with the  Fifth Circuit that "[b]ecause  absolute immunity is            properly viewed  as 'immunity  from suit  rather than  a mere            defense  to liability,'  Mitchell,  472 U.S.  at  526, it  is                                     ________            appropriate for  the district courts to  resolve the question            of absolute  immunity before reaching the  Heck analysis when                                                       ____            feasible." Boyd, 31 F. 3d at 284.                       ____                      Appellant alleges that the prosecutors violated his            constitutional  rights  by  attending  interviews   with  the            victims  and   their  parents  held  after   his  arrest  and            participating in  a  conspiracy  to  influence  the  victims'            statements and "brainwash" them to make false accusations and            commit perjury.   Appellant argues that  the prosecutors thus            had  an "investigative role" in  the case and, therefore, are            entitled only to qualified immunity.                      We   agree  with  the   district  court   that  the            prosecutors  are absolutely  immune from  suit in  this case.            The Supreme Court recently  affirmed the "principle that acts            undertaken by a prosecutor in preparing for the initiation of            judicial  proceedings or  for trial, and  which occur  in the            course of his role as an advocate for the State, are entitled            to the  protections of absolute  immunity.   Those acts  must            include the professional evaluation of the evidence assembled            by   the  police   and   appropriate  preparation   for   its            presentation at trial or before a grand jury after a decision            to  seek  an   indictment  has  been   made."    Buckley   v.                                                             _______            Fitzsimmons, ___ U.S.  ___, 113 S. Ct. 2606,  2615-15 (1993).            ___________            The conduct  alleged clearly  falls within  those parameters.            The  Court  has  specifically  noted  that  "an  out-of-court            `effort   to  control  the   presentation  of   [a]  witness'            testimony' is entitled to absolute immunity." Id.  (citations                                                          ___            omitted).                                         -3-                      Parra's remaining    1983 claims are foreclosed  by            Heck  and  are therefore  frivolous  under     1915(d).   The            ____            complaint  alleges that  the  state actors  -- the  Sheriff's            Department,  Police Department and its individual officers --            were  "responsible for  the  false arrest,  .  . .  Malicious            Prosecutorial   Misconduct;   Criminal   Police   Misconduct;            Perjurious  Statements,  and Testimony;  Falsifying Evidence;            The   Wrongful   Conviction;   Excessive   Sentences;   False            Imprisonment  . .  . ."   It  alleges that  the State  of New            Hampshire   and  its   Governor   are  responsible   for  the            enforcement   of  the   unconstitutional  laws   under  which            appellant  was  prosecuted.    The claims,  as  described  by            appellant,   against  the  non-immune  state  actors  clearly            challenge   the  legality   of  appellant's   conviction  and            sentence, neither of which  has been invalidated.  Therefore,            the claims are not cognizable under   1983.                      Although  it might  be  argued that  a judgment  in            favor  of  Parra  on   his  false  arrest  claim  would   not            "necessarily  imply  the  invalidity  of  his  conviction  or            sentence," Heck, 114  S. Ct.  at 2372, see  United States  v.                       ____                        ___  _____________            Crews, 445 U.S. 463, 474 (1980); Guerro v. Mulhearn, 498 F.2d            _____                            ______    ________            1249,  1254 (1st  Cir.  1974)  ("a false  arrest  .  . .  may            constitute  a  compensable wrong  [under     1983] while  not            undergirding the validity of the criminal conviction to which            it  might be  related."), the  false arrest  claim is  in any                                         -4-            event time-barred.  A  civil rights claim pursuant to    1983            must be brought within  the applicable statute of limitations            period of the  state within which the  incident occurred. See                                                                      ___            Wilson v. Garcia,  471 U.S. 261,  275 (1985).  In  this case,            ______    ______            the  arrest occurred  in  New Hampshire  and  the statute  of            limitations for  claims of false  arrest is three  years. See                                                                      ___            N.H.  Rev. Stat. Ann.    507-B:7 (1993).   Under federal law,            which controls  the  accrual of    1983  claims, see  Guzman-                                                             ___  _______            Rivera v. Rivera-Cruz, 29 F.3d 3, 5 (1st  Cir. 1994), a claim            ______    ___________            for  false arrest  accrues on  the date  of the  arrest. See,                                                                     ___            e.g.,  Rose  v. Bartle,  871 F.2d  331,  351 (3d  Cir. 1989);            ____   ____     ______            McCune  v. Grand Rapids, 842  F.2d 903, 907  (6th Cir. 1988);            ______     ____________            Venegas  v.  Wagner, 704  F.2d  1144, 1146  (9th  Cir. 1983);            _______      ______            Singleton  v. New  York, 632  F.2d 185,  191 (2d  Cir. 1980),            _________     _________            cert. denied, 450  U.S. 920  (1981).  Parra  was arrested  in            ____________            January, 1990.  He  filed this claim in November,  1993, more            than  three years later.   Therefore, the  district court did            not err in dismissing Parra's false arrest claim.                      Given that there is no cause of action under   1983            against  the   state  actors,  even  proper   allegations  of            conspiracy would not  suffice to bring the  private actors or            immune parties within the  ambit of   1983.   Therefore, even            if  appellant's complaint had  included more  than conclusory            allegations of  collusion and conspiracy  between the private            defendants, the prosecutors and  the local officials -- which                                         -5-            it did not --  the   1983 claims against  those parties would            still be foreclosed by Heck.                                   ____                      We affirm the dismissal of appellant's claims under            42  U.S.C.   1985(3) and    1986 for  essentially the reasons            contained  in the  magistrate  judge's order  of November  3,            1993, which was  adopted by  the district court  in an  order            dated December 8, 1993.                      The district court  order dated February 11,  1994,            dismissing the complaint is affirmed.                                        ________                                         -6-
