USCA1 Opinion
April 26, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1557
JEROME E. CASSELL,
Plaintiff, Appellant,
v.
BARRY OSBORN, ET AL.,
Defendants, Appellees.
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No. 93-1607
JEROME E. CASSELL,
Plaintiff, Appellant,
v.
STATE OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees,
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No. 93-2079
JEROME E. CASSELL,
Plaintiff, Appellant,
v.
LINCOLN SOLDATI,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Jerome E. Cassell on brief pro se.
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Jeffrey R. Howard, Attorney General, and Christopher P. Reid
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on brief for appellees, Barry Osborn, State of New Hampshire and
Governor Steven Merrill.
Charles G. Douglas, III, and Douglas & Douglas on brief for
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appellee Lincoln Soldati.
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Per Curiam. Plaintiff James E. Cassell, appeals pro se
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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
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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
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proper workings of our federal system. Cf. Granberry v. Greer,
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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
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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
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district court from exercising its discretion in this case to
fairly restrict the number and length of the papers it will
review.
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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.
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1991); Purvis v. Ponte, 929 F.2d 822, 826-27 (1st Cir. 1991). As
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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
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Neitzke v. Williams, 490 U.S. 319, 327-28 (1989) (under 1915(d)
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the court may dismiss claims based on indisputably meritless
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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.
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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
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challenged on appeal.
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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
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Guerro v. Mulhearn, 498 F.2d 1249, 1251-52 (1st Cir. 1974).
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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
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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
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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,
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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,
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Rule 2. Although no universal palliative for pro se confusion,
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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-
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hearn, 498 F.2d 1249, 1254 n.15 (1st Cir. 1974).
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stayed pending completion of the state case. Deakins v. Mon-
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aghan, 484 U.S. 193, 204 (1988). A stay allows the state case to
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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-
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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.
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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
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abuse, and to spare prospective defendants the expense of answer-
ing such complaints, the district court, acting sua sponte, may
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dismiss claims based on an "indisputably meritless legal theory"
or "clearly baseless" factual allegations. Id. at 327; Denton v.
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Hernandez, 112 S. Ct. 1728, 1732-33 (1992).
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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
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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
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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
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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.
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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-
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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
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effect of 1915(d) dismissal).
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state friction is obvious." Deakins, 484 U.S. at 208 (White, J.
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concurring, quoting Guerro, 498 F.2d at 1253). Conversely, where
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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)
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(affirming dismissal on grounds which need not be first decided
in state proceedings); cf. Bettencourt v. Board of Registration
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in Medicine, 904 F.2d 772, 781 (1st Cir. 1990) (civil rights
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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
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certain claims and simultaneously, without discussion, affirming
dismissal of other claims on grounds of witness immunity), cert.
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denied, 488 U.S. 851 (1988); Bressman v. Farrier, 900 F.2d 1305,
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1309 (8th Cir. 1990) (staying certain claims but dismissing time-
barred claims), cert. denied, 498 U.S. 1126 (1991).
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In pro se cases, accurate identification and comparison
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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
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U.S. at 208; Guerro, 498 F.2d at 1253. In such cases, the
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district court may exercise its discretion under 1915(c) to
order service on the defendants or otherwise obtain assistance in
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pinpointing the issues and the status of the state proceedings,
or it may choose, sua sponte, to order a stay until the state
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proceedings are terminated. Cf. Granberry, 481 U.S. at 133-35
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(affirming similar discretion, sua sponte, to require exhaustion
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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
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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
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Clinic, 113 S. Ct. 753 (1993). The claims against plaintiff's
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state trial attorney are barred because there are no facts
suggesting that his conduct was under "color of state law." Polk
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County v. Dodson, 454 U.S. 312 (1981) (public defender is not a
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state actor for purposes of 1983); Malachowski v. Keene, 787
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F.2d 704, 710 (1st Cir.) (court-appointed private attorney does
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not act under "color of state law"), cert. denied, 479 U.S. 828
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(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
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claims against state officials, in their official capacities
only, are barred by Eleventh Amendment immunity. See Will v.
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Michigan Dep't of State Police, 491 U.S. 58, 70-71 & n.10 (1989).
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The claims against the State's prosecuting attorney are barred by
the federal doctrine of absolute prosecutorial immunity. See
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Burns v. Reed, 500 U.S. 478, ___ (1991) (prosecutors are abso-
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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
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also Buckley v. Fitzsimmons, 113 S. Ct. 2606, 2616 (1993) (quali-
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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
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U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327 (1986).7
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The dismissal of plaintiff's monetary claims against
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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.
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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
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complaint in 93-1607 is affirmed in part and vacated in part, and
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the case is remanded to the district court for proceedings
consistent with this opinion.
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