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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 97-2252 <br> <br>   JUSTINA FIGUEROA, A/K/A JUSTINA FIGUEROA ECHEVARRIA, ET AL., <br> <br>                     Plaintiffs, Appellants, <br> <br>                                v. <br> <br>        MIGUEL RIVERA, A/K/A MIGUEL RIVERA GARCIA, ET AL., <br> <br>                      Defendants, Appellees. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                 FOR THE DISTRICT OF PUERTO RICO <br> <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br>                                 <br>          Rosenn* and Campbell, Senior Circuit Judges. <br>                                 <br> <br> <br>     Maria H. Sandoval and Judith Berkan on brief for appellants. <br>     Arturo Aponte Pares on brief for appellee Gervacio Rivera <br>Robles. <br>     Carlos Lugo Fiol, Solicitor General, Puerto Rico Dep't of <br>Justice, Edda Serrano Blasini, Deputy Solicitor General, and <br>Sigfredo Rodriguez Isaac, Assistant Solicitor General, on brief for <br>remaining appellees. <br> <br> <br> <br> <br>July 20, 1998 <br> <br> <br> <br>_______________ <br>*Of the Third Circuit, sitting by designation.

  SELYA, Circuit Judge.  Appellants, the heirs of Jess <br>Ros Quiones (Ros), allege that local plenipotentiaries conspired <br>to convict Ros for a murder that he did not commit and that a <br>different set of public officials failed to provide Ros with <br>adequate medical care during his incarceration (leading to his <br>premature death).  The district court dismissed the complaint, and <br>the plaintiffs appeal.  We affirm (though our reasoning diverges at <br>times from that of the lower court).   <br>I.  BACKGROUND <br>  If recited here in full flower, the averments in the <br>complaint would seem to have been lifted from the pages of a John <br>Grisham thriller.  Our tale, however, is decidedly less gripping, <br>as many of the more sensational allegations are irrelevant to the <br>issues on appeal.  We limit our narrative accordingly.  See Garita <br>Hotel Ltd. Partnership v. Ponce Fed. Bank, F.S.B., 958 F.2d 15, 16 <br>(1st Cir. 1992). <br>  In 1984, a jury convicted Ros, David Carrin Ramos <br>(Carrin), and Rafael Mndez Kercad (Mndez) of first degree <br>murder in connection with the slaying of Jos Trevio.  The Puerto <br>Rico Supreme Court rejected the trio's appeals.  The three men <br>subsequently sought a new trial in the nisi prius court, alleging <br>that they had unearthed previously undiscovered evidence which <br>proved their innocence.  According to their proffer, this evidence <br>indicated that four other persons murdered Trevio, and that the <br>prosecutor, Miguel Rivera Garca (Rivera), endeavored to frame <br>Ros, Carrin, and Mndez because Rivera's nephew was one of the <br>guilty parties.  After a hearing, the presiding judge found the new <br>evidence unpersuasive and denied the defendants' motion.  No appeal <br>was taken. <br>  Carrin next sought habeas corpus relief in the federal <br>district court pursuant to 28 U.S.C.  2254 (1994 & Supp. II 1996), <br>and Ros followed suit.  After the cases languished for nearly <br>four years, Carrin and Ros filed amended petitions, representing <br>that they had located a brand-new witness who could provide proof <br>of their innocence.  Since the two had not presented this evidence <br>to the trial court, the respondents promptly moved to dismiss the <br>amended habeas petitions on exhaustion grounds.  See Adelson v. <br>DiPaola, 131 F.3d 259, 261-62 (1st Cir. 1997) (discussing the <br>exhaustion requirement in federal habeas jurisprudence).  Before <br>the district court could rule on these motions, Ros died in <br>custody.  Upon learning of Ros's death, the district court <br>(Laffitte, J.) dismissed his petition as moot.  Some months later, <br>Judge Laffitte dismissed Carrin's petition, without prejudice, for <br>want of exhaustion. <br>     On April 9, 1996, various members of Ros's family <br>brought suit in the district court against Rivera, Rivera's former <br>supervisor, several Puerto Rico police officers, and one of <br>Trevio's "actual" murderers.  Invoking 42 U.S.C.  1983 (1994), <br>they averred that these defendants had succeeded in framing Ros <br>for Trevio's murder, thereby spawning an unconstitutional <br>conviction and sentence.  The plaintiffs added a bevy of pendent <br>tort claims stemming from Ros's conviction and consequent <br>incarceration.  These claims sounded in negligence, malicious <br>prosecution, abuse of process, false arrest, and intentional <br>infliction of emotional distress.  Finally, the plaintiffs asserted <br>claims for negligence and deprivation of civil rights against <br>several "John Doe" defendants, never more specifically identified, <br>who allegedly acted carelessly and with deliberate indifference to <br>Ros's need for medical care during his immurement. <br>     The appellees moved to jettison the complaint for failure <br>to state any claim upon which relief could be granted or, in the <br>alternative, for summary judgment.  See Fed. R. Civ. P. 12(b)(6), <br>56.  The district court (Casellas, J.) determined that Heck v. <br>Humphrey, 512 U.S. 477 (1994), barred the action and dismissed the <br>complaint.  See Figueroa Echevarra v. Rivera Garca, 977 F. Supp. <br>112, 116 (D.P.R. 1997).  This appeal ensued. <br>II.  ANALYSIS <br>     We afford plenary review to a district court's grant of <br>a motion for dismissal under Fed. R. Civ. P. 12(b)(6).  See McCoyv. Massachusetts Inst. of Tech., 950 F.2d 13, 15 (1st Cir. 1991).  <br>In the course of this oversight, we accept well-pleaded facts as <br>true and draw all reasonable inferences from those facts in favor <br>of the plaintiff.  See Massachusetts Sch. of Law at Andover, Inc.v. American Bar Ass'n, 142 F.3d 26, 40 (1st Cir. 1998).  Dismissal <br>is appropriate "only if it clearly appears, according to the facts <br>alleged, that the plaintiff cannot recover on any viable theory."  <br>Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 52 (1st Cir. <br>1990). <br>                                A <br>     The appellants' main section 1983 claim hinges on the <br>assertion that Rios's conviction and subsequent imprisonment were <br>unconstitutional.  In their complaint, they allege that the police <br>officers who investigated Trevio's slaying and the prosecutor who <br>tried the case spun a web of lies to ensure Ros's conviction, and, <br>in the bargain, coerced witnesses to prevaricate and shielded the <br>actual killers.  To make matters worse, the complaint alleges, <br>Rivera and his cohorts then undertook a pattern of deceit to <br>conceal their lawlessness. <br>     Assuming, purely for argument's sake, that the appellants <br>could prove these assertions, we nonetheless must uphold the <br>district court's disposition.  The Heck Court ruled in no uncertain <br>terms that when a section 1983 claimant seeks "to recover damages <br>for allegedly unconstitutional conviction or imprisonment," he <br>"must prove that the conviction or sentence has been reversed on <br>direct appeal, expunged by executive order, declared invalid by a <br>state tribunal authorized to make such determination, or called <br>into question by a federal court's issuance of a writ of habeas <br>corpus."  512 U.S. at 486-87.  In the absence of such a showing of <br>impugnment, the claim "is not cognizable under [section] 1983."  <br>Id. at 487.  Here, the appellants do not allege that an authorized <br>tribunal or executive body overturned or otherwise invalidated <br>Ros's conviction.  Consequently, Heck bars the unconstitutional <br>conviction and imprisonment claims.  See, e.g., White v. Gittens, <br>121 F.3d 803, 806-07 (1st Cir. 1997); Hamilton v. Lyons, 74 F.3d <br>99, 103 (5th Cir. 1996). <br>     The appellants counter that strict application of Heckworks a fundamental unfairness in this case.  After all, Ros was <br>attempting to impugn his conviction when death intervened.  <br>Although this plaint strikes a responsive chord, it runs afoul of <br>Heck's core holding:  that annulment of the underlying conviction <br>is an element of a section 1983 "unconstitutional conviction" <br>claim.  See 512 U.S. at 487.  Creating an equitable exception to <br>this tenet not only would fly in the teeth of Heck, but also would <br>contravene the settled rule that a section 1983 claimant bears the <br>burden of proving all the essential elements of her cause of <br>action.  See Ruggiero v. Krzeminski, 928 F.2d 558, 562-63 (2d Cir. <br>1991). <br> <br>                                B <br>     Although the district court reached the correct result <br>with respect to the unconstitutional conviction and imprisonment <br>claims, it dismissed the appellants' action without prejudice, <br>suggesting in dictum that if Carrin ultimately succeeds in <br>reversing his conviction, then the appellants "might be able to . <br>. . bring this [section] 1983 action."  Figueroa Echevarra, 977 F. <br>Supp. at 116.  The appellees denigrate this aspect of the court's <br>ruling, contending that Heck, on its face, requires a section 1983 <br>claimant who seeks damages arising out of an unconstitutional <br>conviction to show reversal of his own   not a codefendant's   <br>conviction, and that, therefore, the district court should have <br>dismissed the appellants' claims with prejudice. <br>     We are skeptical that a section 1983 claimant can satisfy <br>the Heck regimen by arguing a theory of reversal by proxy.  That <br>said, however, we decline to grapple with the appellees' argument.  <br>A party who neglects to file a cross-appeal may not use his <br>opponent's appeal as a vehicle for attacking a final judgment in an <br>effort to diminish the appealing party's rights thereunder.  SeeMorley Constr. Co. v. Maryland Cas. Co., 300 U.S. 185, 191 (1937); <br>Gonzalez v. Bowie, 123 F.2d 387, 389 (1st Cir. 1941).  Because the <br>appellees did not prosecute a cross-appeal, the argument that they <br>seek to advance is not properly before us. <br> <br>                                C <br>     In a curious gambit designed to skirt the obstacles that <br>Heck interposes, the appellants asseverate that Judge Laffitte <br>improperly terminated Ros's and Carrin's habeas petitions in 1996 <br>and 1997, respectively, and that this court erroneously dismissed <br>an appeal from the latter order.  The short answer to this line of <br>argument is that the appellants did not raise these contentions <br>below, and they are thus foreclosed from unveiling them for the <br>first time on appeal.  See Teamsters, Chauffeurs, Warehousemen and <br>Helpers Union, Local No. 59 v. Superline Transp. Co., 953 F.2d 17, <br>21 (1st Cir. 1992); McCoy, 950 F.2d at 22. <br>     The slightly longer, but equally dispositive, answer is <br>that the appellants' gambit amounts to an attempt to collapse the <br>habeas proceedings into their section 1983 action, thereby creating <br>a legal chimera through which they seek simultaneously to <br>invalidate Ros's conviction and to recover damages.  Heckforecloses this type of hybridization and makes the impugning of an <br>allegedly unconstitutional conviction in a separate, antecedent <br>proceeding a prerequisite to a resultant section 1983 action for <br>damages.  See Heck, 512 U.S. at 486-87.  The exclusive method of <br>challenging an allegedly unconstitutional state conviction in the <br>lower federal courts is by means of a habeas corpus action, seePreiser v. Rodriguez, 411 U.S. 475, 488-90 (1973), and, <br>correlatively, "civil tort actions are not appropriate vehicles for <br>challenging the validity of outstanding criminal judgments."  Heck, <br>512 U.S. at 486.  <br>     In all events, the appellants lack standing to press the <br>habeas argument.  Although a state prisoner need not always pursue <br>a habeas petition in person, see 28 U.S.C.  2242 (1994) <br>(stipulating that "someone acting on [the state prisoner's] behalf" <br>may seek the writ), "next friend" habeas petitions are rare.  To <br>bring such a petition, the filing party must show both that she is <br>proceeding in the prisoner's behalf and that there is a valid <br>reason why she is better situated than the prisoner to pursue the <br>writ.  See Whitmore v. Arkansas, 495 U.S. 149, 163-64 (1990). <br>     Whether or not the appellants could satisfy this two-part <br>test with respect to Ros is an academic question.  Ros's death <br>during the pendency of his habeas petition rendered that action <br>moot, and no earthly circumstance can revive it.  See Knapp v. <br>Baker, 509 F.2d 922, 922-23 (5th Cir. 1975); Hann v. Hawk, 205 F.2d <br>839, 840 (8th Cir. 1953); United States ex rel. Schwartz v. Lennox, <br>320 F. Supp. 754, 755 (E.D. Pa. 1971).  As to Carrin's habeas <br>petition, the appellants plainly cannot meet the requirements for <br>proceeding vicariously.  First, they seek to reinstate the petition <br>to serve their own interests in maintaining a section 1983 action; <br>any benefit to Carrin would be purely coincidental.  Second, there <br>is absolutely no indication in the record that Carrin is incapable <br>of pursuing a new habeas petition once he has exhausted his state <br>remedies.  See 1 James S. Liebman & Randy Hertz, Federal Habeas <br>Corpus Practice and Procedure  8.3c, at 218-19 (2d ed. 1994) <br>(cataloging the various incapacities of a prisoner that federal <br>courts have deemed sufficient to justify a "next friend" petition). <br>     For these reasons, then, the appellants' belated <br>collateral attack on a collateral attack to a state conviction is <br>doomed to failure. <br>                                D <br>     Judge Casellas held that the appellants' failure to <br>satisfy the Heck prerequisites swept the board, and he dismissed <br>the entirety of their complaint.  See Figueroa Echevarra, 977 F. <br>Supp. at 116 & n.13.  This ruling is rock-solid insofar as it <br>relates to the unconstitutional conviction and imprisonment claims <br>under section 1983.  In other respects, the ruling is more <br>problematic. <br>     The appellants' secondary section 1983 claim does not <br>challenge the "fact or length of [Ros's] confinement."  Heck, 512 <br>U.S. at 482.  Rather, the appellants charge that unnamed agents of <br>the government's Medical Services Administration acted with <br>deliberate indifference to Ros's need for medical care while in <br>prison, and that this Eighth Amendment violation led to his demise.  <br>See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (explaining that <br>"deliberate indifference to a prisoner's serious illness or injury <br>states a cause of action under [section] 1983").  Heck does not <br>require a section 1983 plaintiff who challenges the conditions of <br>his confinement, as opposed to the fact or length of his <br>confinement, to demonstrate that his conviction has been impugned.  <br>See Heck, 512 U.S. at 487.  Such claims may go forward under <br>section 1983, even if the plaintiff's complaint includes a <br>separate, Heck-barred cause of action.  See Brown v. Plaut, 131 <br>F.3d 163, 167-68 (D.C. Cir. 1997), cert. denied, 66 U.S.L.W. 3750 <br>(U.S. June 22, 1998); Channer v. Mitchell, 43 F.3d 786, 788 (2d <br>Cir. 1994) (per curiam).  We therefore conclude that the district <br>court erred when it dismissed the appellants' deliberate <br>indifference claim on the basis of Heck. <br>     In the final analysis, however, this error is harmless <br>because the dismissal of the deliberate indifference claim is <br>supportable on an alternate ground.  The complaint does not accuse <br>Rivera or any other named defendant of deliberate indifference to <br>medical needs, but levels this charge against various "John Doe" <br>defendants.  In the seventeen months that elapsed between the <br>filing of the complaint and the entry of judgment, the record <br>discloses no attempt by the appellants to identify or serve any of <br>the anonymous defendants allegedly responsible for Ros's deficient <br>medical treatment.  Under Fed. R. Civ. P. 4(m), a district court <br>may dismiss a complaint without prejudice as to a particular <br>defendant if the plaintiff fails to serve that defendant within 120 <br>days after filing the complaint.  Moreover, a district court <br>otherwise prepared to act on dispositive motions is not obligated <br>to "wait indefinitely for [the plaintiff] to take steps to identify <br>and serve . . . unknown defendants."  Glaros v. Perse, 628 F.2d <br>679, 685 (1st Cir. 1980) (internal quotation marks omitted).  We <br>think that seventeen months is a more than ample interlude, and we <br>therefore uphold the district court's "without prejudice" dismissal <br>of the deliberate indifference claim on this alternative ground. <br>     In a similar vein, we affirm the district court's <br>dismissal of the appellants' pendent Puerto Rico law claims, but <br>rest our holding on a basis somewhat different from that envisioned <br>by the lower court.  The appellants premise federal jurisdiction on <br>the section 1983 claims.  See 28 U.S.C.  1331 (1994) (conferring <br>jurisdiction for actions that "aris[e] under" federal law).  <br>Because the district court dismissed those claims at an early <br>stage, it was fully authorized to dismiss all pendent causes of <br>action without prejudice.  See Martinez v. Colon, 54 F.3d 980, 990 <br>(1st Cir. 1995).  The appellants are, of course, free to pursue <br>those causes of action in the courts of Puerto Rico.  See id. at <br>990-91 & n.12. <br>III.  CONCLUSION <br>     We need go no further.  Factually, this is a troubling <br>case.  The appellants' allegations, if true, cry out for <br>remediation.  But the appellants have proceeded down the wrong path <br>in their quest for justice.  Settled principles of law require that <br>we affirm the judgment below, remitting the appellants to other, <br>non-federal remedies. <br> <br>Affirmed.</pre>

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