USCA1 Opinion
May 6, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2068
RAYMOND E. PRATT, JR.,
Plaintiff, Appellant,
v.
STATE OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
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Before
Torruella, Boudin and Stahl,
Circuit Judges.
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Raymond E. Pratt on brief pro se.
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Jeffrey R. Howard, Attorney General, and Daniel J. Mullen,
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Senior Assistant Attorney General, Civil Bureau, on brief for
appellees.
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Per Curiam. Plaintiff, pro se, appeals the
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dismissal of his civil rights complaint for failure to state
a claim under 42 U.S.C. 1983, 1985(3). Plaintiff is
currently incarcerated at the New Hampshire State Prison
following his conviction for certain sex offenses. He
challenges the validity of his conviction, claiming that New
Hampshire's sexual assault laws are unconstitutional because
they permit a conviction to rest solely on the alleged
victim's uncorroborated testimony that a crime occurred.
Plaintiff seeks both equitable and monetary relief. He names
as defendants the State of New Hampshire, the Governor, the
Cheshire County Commissioner, the Keene Police Department and
his own trial attorney.
Since plaintiff is proceeding in forma pauperis,
the magistrate undertook a preliminary review of the
complaint prior to completing service. See 28 U.S.C.
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1915(d). The magistrate construed the complaint as seeking
both habeas relief and damages. He identified several
deficiencies in the statement of the claims and afforded
plaintiff an opportunity to amend the complaint to cure the
defects, 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).
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Plaintiff filed an objection to the report, and an amended
complaint. The amendments added factual allegations about
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plaintiff's criminal case but did not cure the defects the
magistrate had noted in his 1983 claims. Plaintiff
insisted that he did not intend his equitable claims as a
habeas petition; and emphasized that he intended to assert
claims under both sections 1983 and 1985(3). The magistrate
once again reviewed the complaint, observing additional
deficiencies in the claims under 1985, and afforded
plaintiff yet another opportunity to amend. Plaintiff did
not file a second amendment, but again objected to the
magistrate's report. After reviewing the objection, the
district court accepted the magistrate's report and
recommendation, dismissing the complaint.
Plaintiff states that he is currently pursuing a
motion to set aside the verdict and for a new trial in his
state criminal case, as well as a state habeas petition.1
It is thus apparent that his equitable claims were properly
dismissed as an attempt to circumvent the federal habeas
corpus exhaustion rule. Guerro v. Mulhearn, 498 F.2d 1249
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(1st Cir. 1974). Habeas corpus is the sole avenue for
seeking release from confinement based on an allegedly
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1. Plaintiff informed the district court of the pendency of
his state habeas petition in his objection to the
magistrate's initial report and in his amended complaint. In
this court he has filed a "Motion to Introduce Supporting
Evidence" in which he additionally alleges the pendency of a
motion to set aside the verdict and for a new trial in his
state criminal case.
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unlawful conviction. Preiser v. Rodriguez, 411 U.S. 475, 490
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(1973).
While ordinarily civil rights monetary claims are
stayed during the pendency of parallel state criminal
proceedings, they, too, may be dismissed for failure to state
a claim where the ground for dismissal does not affect issues
that must be first decided by the state court. Accord Duncan
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v. Gunter, 15 F.3d 989 (10th Cir. 1994) (affirming dismissal
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on grounds which need not be first decided in state
proceedings); cf. Bettencourt v. Board of Registration in
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Medicine, 904 F.2d 772, 781 (1st Cir. 1990) (observing that
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Deakins v. Monaghan, 484 U.S. 193 (1988) ordinarily requires
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a stay of 1983 monetary claims which cannot be asserted in
parallel state licensing proceeding, but affirming dismissal
of claims where there were independent legal grounds for
dismissal).
Plaintiff's monetary claims were properly dismissed
for reasons which do not encroach upon any issues that may be
raised in the state proceedings. The 1985(3) claims are
infirm because plaintiff alleges no facts showing that he is
a member of a protected class, a requirement to found a claim
under that statute. See Bray v. Alexandria Women's Health
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Clinic, 113 S. Ct. 753 (1993). The claims against
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plaintiff's state trial attorney are infirm because there are
no facts suggesting that the attorney acted "under color of
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state law," as required by 1983. Polk County v. Dodson,
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454 U.S. 312 (1981) (public defender is not a state actor for
purposes of 1983); Malachowski v. Keene, 787 F.2d 704, 710
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(1st Cir.) (court-appointed private attorney does not act
under "color of state law"), cert. denied, 479 U.S. 828
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(1986). The damages claims against the State and the
Governor, in his official capacity, are barred by Eleventh
Amendment immunity. See Will v. Michigan Dep't of State
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Police, 491 U.S. 58, 70-71 & n.10 (1989). The remaining
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claims against the various state, county and local officials
are infirm because public officials are shielded from
liability for civil damages under 1983 "unless their
conduct was unreasonable in light of clearly established
law." Elder v. Holloway, 114 S. Ct. 1019 (1994); see also
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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (qualified
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immunity extends to conduct which "does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known"). Aside from boilerplate
allegations of "conspiracy", plaintiff alleges only that
these officials followed established state law in prosecuting
the charges against him. Thus regardless of the outcome of
his constitutional challenge to the state's law, plaintiff
cannot recover civil damages from these officials for the
conduct alleged.
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Accordingly, plaintiff's "Motion to Introduce
Supporting Evidence is granted, and the judgment below is
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affirmed.
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