
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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 & 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                                         -2-            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                              ____________                       ___ ____                                         -3-            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.               ____________________________________                                         -4-
